Chapter II


Last updated : 22/01/01

A. INTRODUCTION II-2

B. IRWIN TOY v. A-G QUEBEC II-3

        Irwin Toy v. A-G Quebec II-3

C. THE MEANING OF "EXPRESSION" UNDER SECTION 2(b) II-14
        Section 2(b) of the Charter II-14

Picketing: RWDSU v. Dolphin Delivery Ltd. II-15

United Food and Commercial Workers v. Kmart Canada Ltd. II-17

The peace camp: Weisfeld v. Canada II-29

Lap dancing: Ontario Adult Entertainment Bar Assn. v. Toronto II-32

The circus: Stadium Corp. v. City of Toronto II-35

The First Amendment II-37

The draft card case: U.S. v. O'Brien II-37

Flag burning: Texas v. Johnson II-39

Nude dancing: Barnes v. Glen Theatre Inc. II-42

Panhandling: Young v. New York City Transit Authority II-46

A Note on Step Two and the Purpose-Effect Distinction II-50

D. THE CONTEXTUAL APPROACH UNDER SECTION 1 II-52

Step 1: Edmonton Journal v. A-G Alberta II-52

Step 2: Rocket v. Royal College of Dental Surgeons II-55

Step 3: R. v. Keegstra II-57

Step 4: RJR-MacDonald v. A-G Canada II-63

Irwin Toy is a decision of transcending importance in the evolution of a methodology of expressive freedom. Though preceded by Dolphin Delivery, which extended s.2(b)'s protection to labour picketing, and Ford v. A-G Quebec, which included commercial expression in the scope of the guarantee, Irwin Toy represents the Supreme Court of Canada's first attempt to define expressive freedom under the Charter in abstract or general terms. First and foremost, it established a "principle of freedom" under s.2(b), that the Charter protects "all expressions of the heart and mind", no matter how "unpopular, distasteful or contrary to the mainstream". Second, by granting the guarantee such a broad interpretation, the Court set a certain dynamic between the right and reasonable limits under s.1 in motion. A "near-absolute" interpretation of the right, in combination with a strict and literal application of Oakes, would mean that few limits on expressive freedom could survive s.1. Irwin Toy introduced a double standard of review under s.1, which was followed by Wilson J.'s proposal for a contextual approach in Edmonton Journal. Whether by design or not, Irwin Toy established the foundation for the methodology of expressive freedom that evolved in the subsequent jurisprudence.

This Chapter is divided into three parts. The first examines Irwin Toy's definition of expressive freedom and its conception of the relationship between ss.2(b) and 1. The second section considers that definition - "any attempt to convey meaning" - and what, if anything, can be excluded from such an inclusive conception of the right. The third section traces the development of the "contextual approach" under s.1, and raises questions about its impact on s.2(b)'s principle of freedom.

Irwin Toy was decided by only five members of the Court, two of whom dissented, and the other three, who joined forces in an opinion "by the Court". In light of Ford's conclusion that commercial expression is protected by the Charter, the Court's decision to articulate a definition of expressive freedom was unnecessary in this case. The result nonetheless was a two-step test which was abstract and somewhat intractable. For both those reasons, Irwin Toy's status as precedent was at least initially open to question. Despite those uncertainties, Irwin Toy established the foundation for the Charter's s.2(b) jurisprudence. Though the purpose-effect test under s.2(b) and the proposal for two-tiered review under s.1 have not endured, the Court's definition of expression as "any attempt to convey meaning" has. In doing so it entrenched a particular view of the relationship between ss.2(b) and 1 in the jurisprudence.

Irwin Toy considered whether ss. 248 and 249 of the Quebec Consumer Protection Act, which prohibit television advertising directed at persons under thirteen years of age, were unconstitutional. After dismissing challenges under the division of powers and federal broadcasting legislation, the Court found a breach of s.2(b) of the Charter that was justified under s.1. The Court's discussion of the Quebec Charter, the vagueness challenge and of s.7 are omitted. The Quebec Consumer Protection Act provided:

248. Subject to what is provided in the regulations, no person may make use of commercial advertising directed at persons under thirteen years of age.

249. To determine whether or not an advertisement is directed at persons under thirteen years of age, account must be taken of the context of its presentation, and in particular of

(a) the nature and intended purpose of the goods advertised;

(b) the manner of presenting such advertisement;

(c) the time and place it is shown.

Does advertising aimed at children fall within the scope of freedom of expression? ... Clearly, not all activity is protected by freedom of expression, and governmental action restricting this form of advertising only limits the guarantee if the activity in issue was protected in the first place... [T]he first step to be taken in an inquiry of this kind is to discover whether the activity which the plaintiff wishes to pursue may properly be characterized as falling within "freedom of expression". ...

"Expression" has both a content and a form, and the two can be inextricably connected. Activity is expressive if it attempts to convey meaning. That meaning is its content. Freedom of expression was entrenched in our Constitution and is guaranteed in the Quebec Charter so as to ensure that everyone can manifest their thoughts, opinions, beliefs, indeed all expressions of the heart and mind, however unpopular, distasteful or contrary to the mainstream. Such protection is, in the words of both the Canadian and Quebec Charters, "fundamental" because in a free, pluralistic and democratic society we prize a diversity of ideas and opinions for their inherent

value both to the community and to the individual. Free expression was for Cardozo J. of the United States Supreme Court "the matrix, the indispensable condition of nearly every other form of freedom" (Palko v. Connecticut, 302 U.S. 319 (1937), at p. 327); for Rand J. of the Supreme Court of Canada, it was "little less vital to man's mind and spirit than breathing is to his physical existence" (Switzman v. Elbling, [1957] S.C.R. 285 at p. 306). And as the European Court stated in The Handyside case, Eur. Court H.R., decision of 29 April 1976, Series A. No. 24, at p. 23, freedom of expression:

... is applicable not only to "information" or "ideas" that are favourably received or regarded as inoffensive or as a matter of indifference,but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no "democratic society".

We cannot, then, exclude human activity from the scope of guaranteed free expression on the basis of the content or meaning being conveyed. Indeed, if the activity conveys or attempts to convey a meaning, it has expressive content and prima facie falls within the scope of the guarantee. Of course, while most human activity combines expressive and physical elements, some human activity is purely physical and does not convey or attempt to convey meaning. It might be difficult to characterize certain day-to-day tasks, like parking a car, as having expressive content. To bring such activity within the protected sphere, the plaintiff would have to show that it was performed to convey a meaning. For example, an unmarried person might, as part of a public protest, park in a zone reserved for spouses of government employees in order to express dissatisfaction or outrage at the chosen method of allocating a limited resource. If that person could demonstrate that his activity did in fact have expressive content, he would, at this stage, be within the protected sphere and the s. 2(b) challenge would proceed.

The content of expression can be conveyed through an infinite variety of forms of expression: for example, the written or spoken word, the arts, and even physical gestures or acts. While the guarantee of free expression protects all content of expression, certainly violence as a form of expression receives no such protection. It is not necessary here to delineate precisely when and on what basis a form of expression chosen to convey a meaning falls outside the sphere of the guarantee. But it is clear, for example, that a murderer or rapist cannot invoke freedom of expression in justification of the form of expression he has chosen. As McIntyre J., writing for the majority in

RWDSU v. Dolphin Delivery Ltd. [], observed ... :

Action on the part of the picketers will, of course, always accompany the expression, but not every action on the part of the picketers will be such as to alter the nature of the whole transaction and remove it from Charter protection for freedom of expression. That freedom, of course, would not extend to protect threats of violence or acts of violence.

Indeed, freedom of expression ensures that we can convey our thoughts and feelings in non-violent ways without fear of censure. ...

Thus, the first question remains: Does the advertising aimed at children fall within the scope of freedom of expression? Surely it aims to convey a meaning, and cannot be excluded as having no expressive content. Nor is there any basis for excluding the form of expression chosen from the sphere of protected activity... Consequently, we must proceed to the second step of the inquiry and ask whether the purpose or effect of the government action in question was to restrict freedom of expression...

Having found that the plaintiff's activity does fall within the scope of guaranteed free expression, it must next be determined whether the purpose or effect of the impugned governmental action was to control attempts to convey meaning through that activity...

a. Purpose

When applying the purpose test to the guarantee of free expression, one must beware of drifting to either of two extremes. On the one hand, the greatest part of human activity has an expressive element and so one might find, on an objective test, that an aspect of the government's purpose is virtually always to restrict expression. On the other hand, the government can almost always claim that its subjective purpose was to address some real or purported social need, not to restrict expression. To avoid both extremes, the government's purpose must be assessed from the standpoint of the guarantee in question....

If the government's purpose is to restrict the content of expression by singling out particular meanings that are not to be conveyed, it necessarily limits the guarantee of free expression. If the government's purpose is to restrict a form of expression in order to control access by others to the meaning being conveyed or to control the ability of the one conveying the meaning to do so, it also limits the guarantee. On the other hand, where the government aims to control only the physical consequences of certain human activity, regardless of the meaning being conveyed, its purpose is not to control expression...

Thus, for example, a rule against handing out pamphlets is a restriction on a manner of expression and is "tied to content", even if that restriction purports to control litter. The rule aims to control access by others to a meaning being conveyed as well as to control the ability of the pamphleteer to convey a meaning. To restrict this form of expression, handing out pamphlets, entails restricting its content. By contrast, a rule against littering is not a restriction "tied to content". It aims to control the physical consequences of certain conduct regardless of whether that conduct attempts to convey meaning. To restrict littering as a "manner of expression" need not lead inexorably to restricting a content. Of course, rules can be framed to appear neutral as to content even if their true purpose is to control attempts to convey a meaning. For example, ... a municipal by-law forbidding distribution of pamphlets without prior authorization from the Chief of Police was a colourable attempt to restrict expression. ...

In sum, the characterization of government purpose must proceed from the standpoint of the guarantee in issue. With regard to freedom of expression, if the government has aimed to control attempts to convey a meaning either by directly restricting the content of expression or by restricting a form of expression tied to content, its purpose trenches upon the guarantee. Where, on the other hand, it aims only to control the physical consequences of particular conduct, its purpose does not trench upon the guarantee. In determining whether the government's purpose aims simply at harmful physical consequences, the question becomes: does the mischief consist in the meaning of the activity or the purported influence that meaning has on the behaviour of others, or does it consist, rather, only in the direct physical result of the activity.

b. Effects

Even if the government's purpose was not to control or restrict attempts to convey a meaning, the Court must still decide whether the effect of the government action was to restrict the plaintiff's free expression. Here, the burden is on the plaintiff to demonstrate that such an effect occurred. In order so to demonstrate, a plaintiff must state her claim with reference to the principles and values underlying the freedom.

We have already discussed the nature of the principles and values underlying the vigilant protection of free expression in a society such as ours. They were also discussed by the Court in Ford [], and can be summarized as follows: (1) seeking and attaining the truth is an inherently good activity; (2) participation in social and political decision-making is to be fostered and encouraged; and (3) the diversity in forms of individual self-fulfilment and human flourishing ought to be cultivated in an essentially tolerant, indeed welcoming, environment not only for the sake of those who convey a meaning, but also for the sake of those to whom it is conveyed. In showing that the effect of the government's action was to restrict her free expression, a plaintiff must demonstrate that her activity promotes at least one of these principles. It is not enough that shouting, for example, has an expressive element. If the plaintiff challenges the effect of government action to control noise, presuming that action to have a purpose neutral as to expression, she must show that her aim was to convey a meaning reflective of the principles underlying freedom of expression. ...

c. Sections 248 and 249

There is no question but that the purpose of ss. 248 and 249 of the Consumer Protection Act was to restrict both a particular range of content and certain forms of expression in the name of protecting children. Section 248 prohibits, subject to regulation, attempts to communicate a commercial message to persons under thirteen years of age. Section 249 identifies factors to be considered in deciding whether the commercial message in fact has that prohibited content... [In combination the Act and the regulations prohibit particular content of expression...]

When faced with an alleged violation of the guarantee of freedom of expression, the first step in the analysis is to determine whether the plaintiff's activity falls within the sphere of conduct protected by the guarantee. Activity which (1) does not convey or attempt to convey a meaning, and thus has no content of expression or (2) which conveys a meaning but through a violent form of expression, is not within the protected sphere of conduct. If the activity falls within the protected sphere of conduct, the second step in the analysis is to determine whether the purpose or effect of the government action in issue was to restrict freedom of expression. If the government has aimed to control attempts to convey a meaning either by directly restricting the content of expression or by restricting a form of expression tied to content, its purpose trenches upon the guarantee. Where, on the other hand, it aims only to control the physical consequences of particular conduct, its purpose does not trench upon the guarantee. In determining whether the government's purpose aims simply at harmful physical consequences, the question becomes: does the mischief consist in the meaning of the activity or the purported influence that meaning has on the behaviour of others, or does it consist, rather, only in the direct physical result of the activity. If the government's purpose was not to restrict free expression, the plaintiff can still claim that the effect of the government's action was to restrict expression. To make this claim, the plaintiff must at least identify the meaning being conveyed and how it relates to the pursuit of truth, participation in the community, or individual self-fulfilment and human flourishing. ...

...Because we have already found that the plaintiff's activity falls within the sphere of conduct protected by freedom of expression and that the purpose of the legislation is to prohibit particular content of expression...it is far from onerous to require that the concern underlying the restrictive legislation be a pressing and substantial one. Without such a high standard of justification, enshrined rights and freedoms would be stripped of most of their value.

In our view, ...the concern which prompted the enactment of the impugned legislation is pressing and substantial....The concern is for the protection of a group which is particularly vulnerable to the techniques of seduction and manipulation abundant in advertising.... The material given in evidence before this Court is indicative of a generalized concern in Western societies with the impact of media, and particularly but not solely televised advertising, on the development and perceptions of young children. [ ] Broadly speaking, the concerns which have motivated both legislative and voluntary regulation in this area are the particular susceptibility of young children to media manipulation, their inability to differentiate between reality and fiction and to grasp the persuasive intention behind the message, and the secondary effects of exterior influences on the family and parental authority. Responses to the perceived problems are as varied as the agencies and governments which have promulgated them. However the consensus of concern is high.

In establishing the factual basis for this generally identified concern, the Attorney General relied heavily upon the U.S. Federal Trade Commission (FTC) Final Staff Report and Recommendation, In the Matter of Children's Advertising, which contains a thorough review of the scientific evidence on the subject as at 1981....One of its principal conclusions is that young children (2-6) cannot distinguish fact from fiction or programming from advertising and are completely credulous when presented with advertising messages....

The Report thus provides a sound basis on which to conclude that television advertising directed at young children is per se manipulative....

It is reasonable to extend this conclusion in two ways. First, it can be extended to advertising in other media.... Second, it can be extended to advertising aimed at older children (7-13). The Attorney General filed a number of studies reaching somewhat different conclusions about the age at which children generally develop the cognitive ability to recognize the persuasive nature of advertising and to evaluate its comparative worth. The studies suggest that at some point between age seven and adolescence, children become as capable as adults of understanding and responding to advertisements. The majority in the Court of Appeal interpreted this evidence narrowly and found that it only justified the objective of regulating advertising aimed at children six or younger, not the regulation of advertising aimed at children between the ages of seven and thirteen. They concluded, and we agree, that the evidence was strongest with respect to the younger age category. Opinion is more divided when children in the older age category are involved. But the legislature was not obliged to confine itself solely to protecting the most clearly vulnerable group. It was only required to exercise a reasonable judgment in specifying the vulnerable group....

Where the legislature mediates between the competing claims of different groups in the community, it will inevitably be called upon to draw a line marking where one set of claims legitimately begins and the other fades away without access to complete knowledge as to its precise location. If the legislature has made a reasonable assessment as to where the line is most properly drawn, especially if that assessment involves weighing conflicting scientific evidence and allocating scarce resources on this basis, it is not for the court to second guess. That would only be to substitute one estimate for another. In dealing with inherently heterogeneous groups defined in terms of age or a characteristic analogous to age, evidence showing that a clear majority of the group requires the protection which the government has identified can help to establish that the group was defined reasonably. Here, the legislature has mediated between the claims of advertisers and those seeking commercial information on the one hand, and the claims of children and parents on the other. There is sufficient evidence to warrant drawing a line at age thirteen, and we would not presume to re-draw the line....

In sum, the objective of regulating commercial advertising directed at children accords with a general goal of consumer protection legislation, viz. to protect a group that is most vulnerable to commercial manipulation.... The legislature reasonably concluded that advertisers should be precluded from taking advantage of children both by inciting them to make purchases and by inciting them to have their parents make purchases.... The s.1 [ ] materials demonstrate, on the balance of probabilities, that children up to the age of thirteen are manipulated by commercial advertising and that the objective of protecting all children in this age group is predicated on a pressing and substantial concern....

b. Means Proportional to the Ends

The second part of the s. 1...test involves balancing a number of factors to determine whether the means chosen by the government are proportional to its objective....

i. Rational Connection

There can be no doubt that a ban on advertising directed to children is rationally connected to the objective of protecting children from advertising. The government measure aims precisely at the problem identified in the ... materials. It is important to note that there is no general ban on the advertising of children's products, but simply a prohibition against directing advertisements to those unaware of their persuasive intent. Commercial advertisements may clearly be directed at the true purchasers-parents or other adults. Indeed, non-commercial educational advertising aimed at children is permitted. Simply put, advertisers are prevented from capitalizing on the inability of children either to differentiate between fact and fiction or to acknowledge and thereby resist or treat with some scepticism the persuasive intent behind the advertisement. In the present case, we are of the opinion that the evidence does establish the necessary rational connection between means and objective....

ii. Minimal Impairment

...The party seeking to uphold the limit must demonstrate on a balance of probabilities that the means chosen impair the freedom or right in question as little as possible. What will be "as little as possible" will of course vary depending on the government objective and on the means available to achieve it....

Thus, in matching means to ends and asking whether rights or freedoms are impaired as little as possible, a legislature mediating between the claims of competing groups will be forced to strike a balance without the benefit of absolute certainty concerning how that balance is best struck. Vulnerable groups will claim the need for protection by the government whereas other groups and individuals will assert that the government should not intrude....

When striking a balance between the claims of competing groups, the choice of means, like the choice of ends, frequently will require an assessment of conflicting scientific evidence and differing justified demands on scarce resources. Democratic institutions are meant to let us all share in the responsibility for these difficult choices. Thus, as courts review the results of the legislature's deliberations, particularly with respect to the protection of vulnerable groups, they must be mindful of the legislature's representative function....

In other cases, however, rather than mediating between different groups, the government is best characterized as the singular antagonist of the individual whose right has been infringed. For example, in justifying an infringement of legal rights enshrined in ss. 7 to 14 of the Charter, the state, on behalf of the whole community, typically will assert its responsibility for prosecuting crime whereas the individual will assert the paramountcy of principles of fundamental justice. There might not be any further competing claims among different groups. In such circumstances, and indeed whenever the government's purpose relates to maintaining the authority and impartiality of the judicial system, the courts can assess with some certainty whether the "least drastic means" for achieving the purpose have been chosen.... The same degree of certainty may not be achievable in cases involving the reconciliation of claims of competing individuals or groups or the distribution of scarce government resources.

In the instant case, the Court is called upon to assess competing social science evidence.... The question is whether the government had a reasonable basis, on the evidence tendered, for concluding that the ban on all advertising directed at children impaired freedom of expression as little as possible given the government's pressing and substantial objective. The strongest evidence for the proposition that this ban impairs freedom of expression as little as possible comes from the FTC Report [which] concluded that the only effective means for dealing with advertising directed at children would be a ban on all such advertising....However, the Report also...counselled against a ban [because the] record establishes that the only effective remedy would be a ban on all advertisements oriented toward young children, and such a ban, as a practical matter, cannot be implemented. The Report gave two reasons why a ban could not be implemented.... First,... viewing audiences were not so sufficiently segmented that one could implement a total ban on advertising during time periods when, on the basis of television ratings, programming is directed at young children. Only one network program was identified as attracting a viewing audience composed, over 30%, by young children. Second, if the percentage were relaxed to, say, 20%, a total ban on advertising would catch too many non-children and would still fail to catch all programs frequently watched by young children....

Sections 248 and 249 preserve the rationale for a ban contained in the FTC Report at the same time as overcoming the practical limitations suggested therein.... By specifying categories of (1) products, (2) advertisements and (3) audience, the Guidelines allow for a sophisticated appraisal of when an advertisement is aimed at children. These three categories are drawn directly from s. 249 and their elaboration by the office is an attempt to perform the same balancing test required of the courts. Three categories of products are specified: (1) those aimed exclusively at children (toys, and certain candies and foods); (2) those having a large attraction for children (certain cereals, desserts and games); and (3) those aimed at adults. Four categories of advertisements are specified: (1) those not likely to interest children; (2) those not designed to interest children; (3) those directed only partly to children; and (4) those aimed mainly at children. Three categories of audience are specified: (1) children compose over 15%; (2) children compose between 5% and 15%; and (3) children compose less than 5%. On this basis, the Guidelines set forth a table according to which different kinds of advertisements for the various product categories will be permitted depending upon audience composition. There is a system of preclearance run by a committee of the Office which helps advertisers to determine whether any given commercial is subject to the ban.

While ss. 248 and 249 do not incorporate all the details included in the Guidelines, they do put into place the framework for a practicable ban on advertising directed at children....

Of course, despite the FTC Report's conclusions to the contrary, the respondent argued that a ban was not the only effective means for dealing with the problem posed by children's advertising. In particular, it pointed to the self-regulation mechanism provided by the Broadcast Code for Advertising to Children....But having identified advertising aimed at persons under thirteen as per se manipulative, the legislature of Quebec could conclude, just as reasonably, that the only effective statutory response was to ban such advertising.

In sum, [w]hile evidence exists that other less intrusive options reflecting more modest objectives were available to the government, there is evidence establishing the necessity of a ban to meet the objectives the government had reasonably set. This Court will not, in the name of minimal impairment, take a restrictive approach to social science evidence and require legislatures to choose the least ambitious means to protect vulnerable groups ....

iii. Deleterious Effects

There is no suggestion here that the effects of the ban are so severe as to outweigh the government's pressing and substantial objective. Advertisers are always free to direct their message at parents and other adults. They are also free to participate in educational advertising. The real concern animating the challenge to the legislation is that revenues are in some degree affected. This only implies that advertisers will have to develop new marketing strategies for children's products .... The final component of the proportionality test is easily satisfied....

While I agree with them that ss. 248 and 249 of the Consumer Protection Act infringe s. 2(b), ... I do not agree that they may be justified....

... I would say that freedom of expression is too important to be lightly cast aside or limited. It is ironic that most attempts to limit freedom of expression and hence freedom of knowledge and information are justified on the basis that the limitation is for the benefit of those whose rights will be limited. It was this proposition that motivated the early church in restricting access to information, even to prohibiting the promulgation and reading of the scriptures in a language understood by the people. The argument that freedom of expression was dangerous was used to oppose and restrict public education in earlier times. The education of women was greatly retarded on the basis that wider knowledge would only make them dissatisfied with their role in society. I do not suggest that the limitations imposed by ss. 248 and 249 are so earth shaking or that if sustained they will cause irremediable damage. I do say, however, that these limitations represent a small abandonment of a principle of vital importance in a free and democratic society and, therefore, even if it could be shown that some child or children have been adversely affected by advertising of the kind prohibited, I would still be of the opinion that the restriction should not be sustained. Our concern should be to recognize that in this century we have seen whole societies utterly corrupted by the suppression of free expression. We should not lightly take a step in that direction, even a small one.

It must be recognized that freedom of expression despite its singular importance is, like all rights, subject to limitations. It is not absolute. We have all heard the familiar statement that nobody has a right to shout "fire" in a crowded theatre. It illustrates the extreme and obvious case, but there will, of course, be other cases where limitations on the right may well be necessary and therefore justifiable. This, however, in my view, is not such a case. Freedom of expression, whether political, religious, artistic or commercial, should not be suppressed except in cases where urgent and compelling reasons exist and then only to the extent and for the time necessary for the protection of the community.

In my view, no justification can be found under s. 1 of the Charter for these sections, and I would dismiss the appeal ...

1. Are there inconsistencies in the Court's approach to s.2(b)? For example, how can "violent forms of expression" be excluded from a definition that extends prima facie protection to every attempt to convey meaning? Are violent forms excluded because they do not fall within the definition [i.e., do not convey a meaning], or because they constitute an exception to the rule that expression which conveys a meaning is protected? Note that Irwin Toy's failure to indicate whether violent forms are excluded as conduct rather than expression, or whether such activities are instead regarded as unprotected expression, made it virtually impossible to determine what the Court meant by this term.

2. What about the relationship between step 1 and step 2 of the Court's s.2(b) test? Though the first step assumes that all expressive activity is protected, regardless of its content, the second step would require some claimants to establish that the content of their expressive activity serves s.2(b)'s underlying values. Meanwhile, other claims proceed directly to s.1, where the infringement is purposeful (as, for example, with the criminalization of perjury), whether the activity serves s.2(b)'s values or not.

3. Note the Court's statement that a ban on pamphletting is "tied to content". It is not a content distinction because such a prohibition bans all pamphlets, regardless of content. A by-law that singled out certain kinds of pamphlets based on their content - i.e., communist or religious tracts - would violate the principle of freedom for all expression regardless of its content. A ban on pamphlets may be a purposeful infringement of s.2(b) without being based on content.

4. Does the purpose-effect test serve any useful conceptual or analytical function? Note that, with the exception of McLachlin J.'s proposed approach to access in Committee for the Commonwealth of Canada v. Canada [infra, Chapter III], it was effectively abandoned in the subsequent jurisprudence.

5. Despite the violent forms exception and purpose-effect limitation, Irwin Toy purported to give s.2(b) a generous interpretation. Should s.2(b) protect all expressive activity equally, and without regard to its value or content? Alternatively, should expression that isinconsistent with its underlying values be excluded from the Charter? What is the fundamental assumption of s.2(b)'s guarantee of expressive freedom, and how would you rationalize the exclusion of activity which is undeniably expressive from s.2(b)? Is it consistent with Irwin Toy's principle of freedom to link the Charter's protection to perceptions of the relative value of expressive activity?

6. Turning to the relationship between ss.2(b) and 1, does the relative value or valuelessness of the expression raise a question of entitlement under s.2(b) or of justification under s.1? Does it matter whether distinctions between expressive activities are drawn under s.2(b) or left to s.1? Note that Irwin Toy proposed two modifications to the Oakes test. First it offered a rationale for two standards of justification, one strict and the other deferential. Is the singular antagonist-protector/benefactor distinction between different kinds of Charter violations by the government persuasive? Second, Irwin Toy reduced key elements of the Oakes test - the requirement of a substantial and pressing objective and the minimal impairment test - to a standard of reasonableness. Is reasonableness as a test of constitutionality too discretionary, or does it introduce a valid element of flexibility in a test which is otherwise too demanding and rigid?

Is expressive activity intrinsically more valuable than conduct? Why not extend the Charter's protection to conduct? Should any distinction be drawn between expression and conduct? As a matter of definition, how can that line be drawn?

Irwin Toy held, as a general rule, that "any attempt to convey meaning" is prima facie protected by s.2(b). A generous interpretation of that rule would obliterate the distinction between expression and conduct. At the same time, pure conduct can often be expressive. The materials in this section consider which activities are expressive enough to warrant constitutional protection under s.2(b). Note that the Supreme Court of Canada made the following comment in R. v. Butler, infra Chapter VI. Would any activity be excluded from s.2(b) under such a subjective conception of expression?

The meaning to be ascribed to the work cannot be measured by the reaction of the audience.... Rather, the meaning of the work derives from the fact that it has been intentionally created by its author.... [I]t may very well be said that a blank wall in itself conveys no meaning. However, if one deliberately chooses to capture that image by the medium of film, the work necessarily has some meaning for its author and thereby constitutes expression.

The constitutional status of picketing and mass demonstrations has generated a substantial jurisprudence in the United States. In Dolphin Delivery, the Supreme Court of Canada addressed two difficult questions of interpretation - the application of the Charter to private action and the relationship between s.2(b) and s.1 - for the first time. Although not without ambiguity, the Court held, in answer to the second question, that picketing is prima facie protected by s.2(b) of the Charter.

[The litigation arose from a labour dispute. Relying on common law causes of action, Dolphin Delivery sought an injunction to restrain the defendant union from engaging in secondary picketing at its premises; in defending the action, the union raised the Charter.]

The appellants argue strongly that picketing is a form of expression fully entitled to Charter protection and rely on various authorities to support the proposition.... They reject the American distinction between the concept of speech and that of conduct made in picketing cases ...

It is evident that the purpose of the picketing in this case was to induce a breach of contract between the respondent and Supercourier and thus to exert economic pressure to force it to cease doing business with Supercourier. It is equally evident that, if successful, the picketing would have done serious injury to the respondent. There is nothing remarkable about this ... There is, as I have earlier said, always some element of expression in picketing. The union is making a statement to the general public that it is involved in a dispute, that it is seeking to impose its will on the object of the picketing, and that it solicits the assistance of the public in honouring the picket line. Action on the part of the picketers will, of course, always accompany the expression, but not every action on the part of the picketers will be such as to alter the nature of the whole transaction and remove it from Charter protection for freedom of expression. That

freedom, of course, would not extend to protect threats of violence or acts of violence. It would not protect the destruction of property, or assaults, or other clearly unlawful conduct. ...

Notes and Questions

1. Does McIntyre J. adequately address the distinction between expression and action? Given his acknowledgment that there is always some element of expression in picketing, can it ever be excluded from s.2(b)? See also BCGEU v. A-G British Columbia, [1988] 2S.C.R. 214, infra Chapter III, upholding an injunction on courthouse picketing.

2. Why does McIntyre J. state that the Charter would not extend to "threats of violence or acts of violence ... the destruction of property, or assaults, or other clearly unlawful conduct"? Is it because the activities listed do not constitute "expression", or is it becausesuch activities, despite being expressive, should not be protected by the Charter? Note that Dolphin Delivery was decided before Irwin Toy.

3. Justice McIntyre's definition of freedom of expression would exclude "other clearly unlawful conduct". Is it clearly unlawful to commit a tort? If the answer is yes, then the picketing presumably should have been excluded from s.2(b). Instead he found that picketing is covered by s.2(b) but concluded that the injunction was a reasonable limit under s.1.

The respondent KMart Canada Ltd. operates several stores in British Columbia. Seven of them are located in the Lower Mainland, two in Victoria, one in Campbell River, and one in Port Alberni. The appellant is the union certified to represent employees at the Campbell River and Port Alberni stores. Those stores are the "primary employer".The union is not certified to represent employees in the Lower Mainland or Victoria stores.These stores will be referred to as the "secondary sites". During a labour dispute with the primary employer, members of the appellant union distributed leaflets at the secondary sites.

The Labour Relations Board in its decision described the leafleting activity in this way. Between December 4 and 6, 1992, groups of employees ranging from two to 12 individuals representing the appellant distributed leaflets to prospective KMart customers at the secondary sites.The individuals stood from two to 20 feet from the entrance of the stores and the majority were between six and eight feet from the doors.They handed out two types of leaflets, describing the respondent's alleged unfair practices and urging customers to shop elsewhere.The leaflets made clear that the appellant was seeking only a consumer boycott of the respondent's stores. The relevant parts of the leaflets read as follows:

ATTENTION K-MART SHOPPERS!!!

DID YOU KNOW THAT:

K-MART locked out over 140 employees, preventing them from working in their K-MART stores in Campbell River and Port Alberni in an attempt to stop the employees from attaining the basic needs within a first collective agreement.

U.F.C.W. LOCAL 1518, AND THE LABOUR MOVEMENT OF BRITISH COLUMBIA ARE ASKING YOU:

PLEASE DO NOT SPEND YOUR CHRISTMAS $$$$ AT K-MART - SHOP AT THEIR COMPETITOR'S STORES!!

For the past six months, over 140 members of the United Food and Commercial Workers Union, Local 1518, have been on strike, at the K-MART stores in Campbell River and Port Alberni.

We are asking for your assistance by boycotting this giant multinational corporation called K-MART.By doing so, we hope to move one step closer to eliminating the exploitation of employees who work for K-MART and return our striking members back to work with dignity, respect, and a fair collective agreement.

The distribution of leaflets did not interfere with employees at the secondary sites nor was there any indication that it interfered with the delivery of supplies. The activity was carried out peacefully and it did not impede public access to the stores. Neither was there any evidence of verbal or physical intimidation. The evidence did indicate that as a result of the distribution of leaflets some customers appeared confused and a small number appeared to turn away....

Labour Relations Code, S.B.C. 1992, c. 82

1. (1) __In this Code "picket" or "picketing" means attending at or near a person's place of business, operations or employment for the purpose of persuading or attempting to persuade anyone not to

(a) enter that place of business, operations or employment,

(b) deal in or handle that person's products, or

(c) do business with that person,

and a similar act at such a place that has an equivalent purpose;

_2. (1)__ The following are the purposes of this Code:

(c) to minimize the effects of labour disputes on persons who are not involved in the dispute;

(d) to promote conditions favourable to the orderly, constructive and expeditious settlement of disputes between employers and trade unions;

(e) to ensure that the public interest is protected during labour disputes;

64. A trade union or other person may, at any time and in a manner that does not constitute picketing as defined by this Code, communicate information to a person, or publicly express sympathy or support for a person, as to matters or things affecting or relating to terms or conditions of employment or work done or to be done by that person.

65.

(3) A trade union, a member or members of which are lawfully on strike or locked out, or a person authorized by the trade union, may picket at or near a site or place where a member of the trade union performs work under the control or direction of the employer if the work is an integral and substantial part of the employer's operation and the site or place is a site or place of the lawful strike or lockout.

...

g. For the purpose of this section, divisions or other parts of a corporation or firm shall, if they are separate and distinct operations, be treated as separate employers....

67. Except as provided in this Code, a person shall not picket in respect of a matter or dispute to which this Code applies.

i. Overview

Freedom of expression is fundamental to freedom. It is the foundation of any democratic society.__It is the cornerstone of our democratic institutions and is essential to their functioning . . . . __Moreover, it has repeatedly been held that rights and freedoms under the Charter must be interpreted generously in order to secure the full benefit of the Charter's protection.... The decision in Dolphin Delivery . . . underlined the fundamental value of free expression in the following terms...

Yet, the guarantee of freedom of expression must always be considered in the context presented by each case.... It is the relative value of freedom of expression in the context in which it is presented which will affect the balancing which takes place under s. 1 of the Charter. __In this case, the leafleting activity was carried out in support of the appellant's position in a labour dispute. Although . . . the impugned legislation infringes s. 2(b), the extent of the protection . . .in the context of labour relations must still be explored in order to determine whether the legislation may be justified under s. 1 ....

__The importance of work for individuals has been consistently recognized and stressed.__ Dickson C.J. in Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313, observed at p. 368: "A person's employment is an essential component of his or her sense of identity, self-worth and emotional well-being. Accordingly, the conditions in which a person works are highly significant in shaping the whole compendium of psychological, emotional and physical elements of a person's dignity and self respect@[]. As well, the vulnerability of individual employees, particularly retail workers, and their inherent inequality in their relationship with management has been recognized []. __It follows that workers, particularly those who are vulnerable, must be able to speak freely on matters that relate to their working conditions.__ For employees, freedom of expression becomes not only an important but an essential component of labour relations. __It is through free expression that vulnerable workers are able to enlist the support of the public in their quest for better conditions of work. Thus their expression can often function as a means of achieving their goals.

__The facts of this case underscore the importance of freedom of expression in labour relations. The leafleting activity by the appellant was conducted in the course of a lawful dispute which had resulted in the employees being locked out for six months. The leaflets appealed to the public not to spend their money at KMart stores. They stated that 95 percent of the workforce were women and part-time employees and that the workers were seeking their first collective agreement. The collective bargaining issues included not only wages and working conditions, but also employment equity and job security....

__The fundamental freedom to speak about matters that relate to working conditions is explicitly recognized by the Code.__ Section 64 provides that a trade union and its members are free to communicate information to the public with regard to a labour dispute, except in a manner which may constitute picketing._ _Accordingly, the Board held that it was permissible for employees to publish letters, issue press releases, take out newspaper advertisements or use billboards in order to publicize the labour dispute and attempt to gain public sympathy. __In my view, it follows that both the legislation and the Board policy appreciate how very important it is for workers to disseminate accurate information in a lawful manner with regard to a labour dispute.

The distribution and circulation of leaflets has for centuries been recognized as an effective and economical method of both providing information and assisting rational persuasion.__It has long been used as a means to enlist support[]. Free expression on matters of public interest and the right to publicly disseminate news and information and to express opinions on matters of public interest were considered to be fundamental rights long before the enactment of the Charter []. The distribution of leaflets and posters is typically less expensive and more readily available than other forms of expression. As a result, they are particularly important means of providing information and seeking support by the vulnerable and less powerful members of society []. Leafleting ... is a form of expression that has historically been used by vulnerable and disadvantaged groups....

The respondent argued that the appellant's intention in this appeal was to promote the economic interests of organized labour and that the appellant attempted "to take the dispute out of context by denying ... the commercial and economic aspects of picketing". Admittedly, an individual's employment provides economic benefits, but it also fulfils significant social and psychological needs. For workers, a form of expression which deals with their working conditions and treatment by their employer is a statement about their working environment. Thus it relates to their well-being and dignity in the workplace []. The Board recognized that picketing had not been defined by this Court solely in economic or commercial terms which would have afforded it less protection than other forms of political speech under the Charter. The Board correctly recognized that this constituted a Arecognition that collective bargaining and labour law often involve not simply economic issues but fundamental legal, political and social issues.__ It is further recognition of the importance of a person's livelihood and the significance of their dignity in the workplace" [].... __

It is obvious that freedom of expression in the labour relations context is fundamentally important and essential for workers. In any labour dispute it is important that the public be aware of the issues. Furthermore, leafleting is an activity which conveys meaning. __In light of the very broad interpretation that has been given to freedom of expression, it clearly falls within the purview of s. 2(b)....

In the case at bar, the respondent and the Attorney General very properly conceded that the restriction on consumer leafleting activity was prima facie an infringement of freedom of expression....

The question raised is whether the definition of Apicketing@ in s. 1(1) of the Code is overly broad....

__The aim of the analysis under s. 1 of the Charter is to determine whether the infringement of a Charter right or freedom can be justified in a free and democratic society. [After summarizing the elements of the test, Cory, J. repeated that the analysis must be undertaken in the context of labour relations].

In framing the objective as "insulating third parties from the harmful effects of a labour dispute" the respondent and the Attorney General relied on Dolphin Delivery. _There McIntyre J. determined that the objective of the restriction was to ensure that a third party would not suffer unduly from the labour dispute over which it has no control. __At issue in Dolphin Delivery was whether secondary picketing in support of a labour dispute was a protected form of expression under the Charter free from restriction by injunction._...

The s. 1 analysis in Dolphin Delivery is of limited assistance for the present appeal. __Indeed McIntyre J. specifically stated that it was not necessary for him to express an opinion in s. 1. What followed was clearly obiter and not essential to his reasoning. That case involved a different factual framework and the issues raised have different constitutional foundations. In Dolphin Delivery the determination of the objective proceeded on the assumption that the anticipated picketing would involve conventional picket lines. __The activity would be tortious, interfering with contractual rights of third parties.__It was assumed that some employees of the picketed enterprise and other trade union members of customers would decline to cross the picket lines, and that the business would be disrupted to a considerable extent._[]_

It is important to note that a restriction on picketing activity was also considered in the case of B.C.G.E.U. v. British Columbia (Attorney General) []. _There the Court found that picketing by the striking employees of the courthouse impeded public access to the courts and thus interfered with the rule of law, the very foundation of our justice system.__...In view of the potentially disruptive effects of the activity, there is little doubt that a substantial and pressing concern exists to ensure the regulation of conventional picketing.__Conventional picketing is characterized by picket lines which have a "signal effect". It is often understood as attracting an automatic reflex response from workers, suppliers and consumers.__Its existence impedes access to picketed sites.__This impediment to movement may discourage some people from making rational choices based on persuasive discourse.__The decision in Dolphin Delivery was not challenged and [whether] restrictions on consumer leafleting are constitutionally valid will therefore depend on whether a distinction can be drawn between the conventional picketing at issue in Dolphin Delivery and the consumer leafleting in question here.__...

(a) Distinction Between Traditional Picketing and Consumer Leafleting

__Picketing is an important form of expression in our society and one that is constitutionally protected.... There can be no doubt that picketing is an exercise of freedom of expression. __Yet its trademark is the picket line, which has been described as a "signal" not to cross. __Whatever may be its message, the picket line acts as a barrier. __It impedes public access to goods or services, employees' access to their workplace, and suppliers' access to the site of deliveries....

Picket lines constitute a formidable barrier. There is a reluctance in Canadian society to cross a picket line....

The decision for people, whether employees, suppliers or consumers, not to cross the picket line may be based on its coercive effect rather than the persuasive force of the picketers. __As the Board noted [], "picketing is both a signal and the exercise of freedom of expression"...._ _In Dolphin Delivery, the "signal" effect of the activity impeded employees trying to reach their workplace._ _While that pressure may be properly applied against the primary employer, when it is brought against a neutral party by means of secondary picketing then it may not be permissible.

Consumer leafleting is very different from a picket line. __It seeks to persuade members of the public to take a certain course of action. __It does so through informed and rational discourse which is the very essence of freedom of expression. __Leafleting does not trigger the "signal" effect inherent in picket lines and it certainly does not have the same coercive component. __It does not in any significant manner impede access to or egress from premises. __Although the enterprise which is the subject of the leaflet may experience some loss of revenue, that may very well result from the public being informed and persuaded by the leaflets not to support the enterprise. __Consequently, the leafleting activity if properly conducted is not illegal at common law....__ __Significantly, the harmful effects that flow from leafleting do not differ from those which would result from a consumer boycott campaign conducted by permissible means. __In fact it is well nigh impossible to distinguish between the situation whereby consumers are informed and persuaded not to buy through leafleting at the place of purchase, and the situation whereby the same consumers are informed and persuaded not to buy through leaflets delivered to the mailbox, newspaper advertising, internet mailing or billboards and posters.

(b) The Labour Board's Position on Leafleting

The Board declined to make a distinction between picketing and leafleting.__It put forward two reasons.__First, the Board was concerned that leafleting, in some circumstances, might function in the same manner as picketing with the result that the distinction would allow parties to circumvent the regulation of picketing by means of leafleting....

The second concern expressed by the Board was that leafleting and picketing share the same objective -- to bring economic pressure to bear in support of a labour dispute.... __It is true that both leafleting and secondary picketing seek to achieve the same objective, that is to bring economic pressure on the employer.

However, it is the means utilized to achieve that pressure which distinguishes these actions. __The public has a right to know the factual background and nature of a labour dispute. __Indeed it is often the weight of public opinion which will determine the outcome of the dispute. Information regarding the factual background and the position of the parties may be very properly disseminated by them. __For example, this may be achieved by a party purchasing space in newspapers or billboards or by purchasing time for announcements to be made by radio or television. __In most labour disputes, it is far more likely that the employer will be able to afford and utilize these means of putting forward its position. __Fairness dictates that employees should be able to put forward their position to the public by distributing leaflets....

Yet, with respect, I do not believe that the appellant's motivation for pursuing the activity is pertinent to the constitutional review of consumer leafleting. __The relevant comparison between conventional picketing and consumer leafleting must focus on the respective effects of the two forms of expression and not on the motivations in pursuing the activity....

Picketing and consumer leafleting have fundamentally different effects. __While the former uses coercion and obedience to a picket line to impede public access to an enterprise, the latter attempts to rationally persuade consumers to take their business elsewhere. __Consumer leafleting is much more akin to a consumer boycott achieved through radio or newspaper advertisement than it is to conventional picketing....

In deciding whether the consumer leafleting activity in question is acceptable, it will be important to determine whether consumers are able to determine for themselves what course of action to take without being unduly disrupted by the message of the leaflets or the manner in which it was distributed. __Consumers must retain the ability to choose either to stop and read the material or to ignore the leafleter and enter the neutral site unimpeded. __Did the prospective customer turn away because of the accurate and rational arguments put forward in the leaflets, the persuasive discourse of the leafleter or because of the intimidating manner in which the activity was conducted?

The Board was concerned with the difficulty of distinguishing between picketing and leafleting....

I agree that ... some forms of leafleting could be considered to be picketing or the equivalent of picketing. __For example, if those distributing the leaflets carried placards, or if they were so numerous that they impeded access to and egress from the targeted premises, or if the leaflets were directed towards the workers in those premises rather than customers, then those types of leafleting could constitute or be the equivalent of picketing. However, the leafleting at issue in this case had none of these features.

In this case, the leafleting conformed with the following conditions:

(i) the message conveyed by the leaflet was accurate, not defamatory or otherwise unlawful and did not entice people to commit unlawful or tortious acts;

(ii) although the leafleting activity was carried out at neutral sites, the leaflet clearly stated that the dispute was with the primary employer only;

(iii) the manner in which the leafleting was conducted was not coercive, intimidating, or otherwise unlawful or tortious;

(iv) the activity did not involve a large number of people so as to create an atmosphere of intimidation;

(v) the activity did not unduly impede access to or egress from the leafleted premises;

(vi) the activity did not prevent employees of neutral sites from working and did not interfere with other contractual relations of suppliers to the neutral sites.

 

Leafleting which complied with these conditions would normally constitute a valid exercise of freedom of expression carried out by lawful means. Yet it would be prohibited by the impugned legislation....

For the purpose of the Oakes test, a legislative objective must not be overstated. __It must be accurately and precisely defined so as to provide a clear framework for evaluating its importance, and to assess the precision with which the means have been crafted to fulfil that objective. If the objective is stated too broadly, its importance may be exaggerated and the analysis compromised []. The characterization of the objective by the respondent and the Attorney General is too broad. __If their position were adopted, a wide range of lawful activities could be restricted. __If the Code was really seeking to insulate third parties from the harmful effects of a labour dispute, then any effective means of bringing pressure to bear upon third parties could be restricted. __Such a proposition is not consistent with s. 64 of the Code, which allows for information to be communicated to the public as a means of gaining support "as to matters or things affecting or relating to terms or conditions of employment". __Rather, the purpose of the legislation is to minimize the harmful effects to third parties which would result from others impeding access to premises or to encourage employees to break their contract of employment. __Accordingly, a trade union is allowed to publish letters, issue press releases, take out newspaper advertisements, rent billboards, or distribute leaflets in mailboxes in order to gain public sympathy and support for its position.

The objective of the picketing restrictions must be read in concert with the overall purposes of the Code [which] does not seek to completely insulate third parties from the effects of labour disputes. Rather it seeks to minimize the impact of industrial conflict on persons who are not involved in the dispute. __A restriction on conventional picketing at neutral sites would insulate third parties from the adverse effects of picketing and thereby "minimize the effects of labour disputes on persons who are not involved". However those persons are not protected from the effects of all activity flowing from a labour dispute. __For example, third parties are subject to economic pressures flowing from successful boycott campaigns conducted through the media or any other permissible means....

(a) Rational Connection

The government sought to minimize the impact of the harmful effects of picketing on neutral third parties and the public.... While a restriction on conventional picketing activity at neutral sites is rationally connected with the legislative objective, the restriction on leafleting activity is too broad....

(b) Minimal Impairment

(i) Deference to the Legislature

The present issue arises in a labour context which normally involves competing interests of a complex and sophisticated nature. The respondent and the Attorney General have therefore argued that a degree of deference should be shown to the legislature in finding the proper balance between the interests of labour and management.... Certainly, this Court has recognized the complex interests involved in labour legislation and has on occasion expressed its reluctance to interfere with the balance struck by the legislator....

Although courts should be hesitant to strike down labour legislation, it does not follow that industrial relations are immunized from Charter review. __Just as in any other area where the legislature is called upon to balance competing interests on complex issues, deference should be shown to the political choices of the legislature in labour legislation. __However, deference should not deter the courts from determining whether those political choices fall within constitutionally permissible parameters of reasonable alternatives....

Ultimately, the concept of deference does not relieve the party seeking to uphold the limit on a protected right or freedom from demonstrating that the restriction is reasonable and demonstrably justified.... In addition, the contextual circumstances of this case must be examined in order to determine the proper degree of deference []. In my view, a number of factors suggest that a deferential approach should not resolve the issue.

First, it was suggested that the legislature acts to mediate among competing economic interests and not as a singular antagonist. As a result, latitude should be given to the legislature's policy choices. Admittedly, the legislature must be given a broad discretion in its efforts to reach a sensible balance between the interests of the parties involved. However, that balancing must take into account the interests of all parties. In enacting a complete ban on persuasive activity at neutral sites, the legislature might have been concerned with the balance of power between labour and management and the protection of the public in not being unfairly confronted or intimidated by picketing activity. However, the public's interest in the dissemination of accurate information by lawful means has been overlooked. It has been held that the consumer's interest in receiving the information could be one of the reasons for striking down restrictions on freedom of expression [].

Unlike other aspects of industrial relations, leafleting is not strictly confined to labour and management. In the labour relations context, leafleting directed at consumers seeks to persuade the public by the reasons put forward to take a certain course of action as a result of the employer's treatment of its workers. __Whether that appeal occurs during the negotiations regarding working conditions or outside the framework of collective bargaining, the public's interest as the recipient of the information is evident. __It must be recognized and protected so that all citizens, particularly consumers, can make informed choices []. __Moreover, if the leafleting occurs during a labour dispute over conditions of employment, the public's influential role in the settlement of the dispute should not be underestimated. __In my view, when leafleting is so widely restricted, the public's interest is not taken into consideration.__Consequently, this factor should not be utilized to justify a lower standard of justification under s. 1.

Second, the lower courts showed deference to the legislature on the ground that the leafleting restriction had been enacted as a result of a compromise, "giving unions a greater ability to exert economic pressure in other ways" []. __Neither can this factor be determinative.__ That a restriction of a fundamental right is part of a particular compromise does not constitute a justification for it....

Third, a restriction on consumer leafleting is not designed to protect a vulnerable group in Canadian society. __Businesses whose economic interests may be affected by leafleting are not a vulnerable or disadvantaged group in need of protection. __Rather, it is those who are subject to the legislative restriction who form a vulnerable group in Canadian society [].

_(ii) Appropriate Standard of Review

In the absence of Charter considerations, the statutory interpretation made by the Board is ordinarily entitled to deference provided it is not patently unreasonable. __However, if, as it did in this case, the Board applies the Charter...the Court must determine whether the Board's decision was correct.

(iii) Minimal Impairment in this Case

... It was argued that the mere presence of union members at the site for the purpose of leafleting is threatening or intimidating for the customers. __It was contended that it evokes the same "signal effect" as conventional picketing, thereby impeding public access to the leafleted premises. __I cannot accept this argument. __There is no doubt that any activity which in fact impedes access to premises...has the same effect as conventional picketing and therefore can be

properly regulated and restricted. __However, peaceful leafleting by a few individuals has as a general rule been accepted as a lawful means of disseminating information.

The suggestion that today's consumers will be intimidated by the mere sight of a few individuals distributing leaflets at the entrance to a shopping mall is not convincing. __The image of an oversensitive consumer cannot be the standard by which to assess the constitutionality of the activity. __Bastarache J. provides a good analogy with regard to Canadian voters. __In Thomson Newspapers [] he wrote:

The importance of freedom of expression during labour disputes cannot be overemphasized. Accurate information which is presented in what is generally accepted to be a lawful manner will provide valuable information to members of the public and is thus worthy of constitutional protection. __Leafleting is of fundamental importance for workers and has a very real social value. It is apparent that the legislative restriction is overbroad, and cannot be justified under s. 1 of the Charter.

Sections 1, 65 and 67 of the Code operate as a blanket prohibition on any persuasive activity by striking or locked-out employees at neutral sites. __A total prohibition is clearly not carefully tailored to the objective of minimizing the harmful effects to third parties which would result from others impeding access to premises or __encouraging employees to break their contract of employment....

The Code provides a single prohibition which encompasses all forms of persuasion including consumer leafleting. Conventional picketing and consumer leafleting are given the same constitutional weight despite the clear distinctions between them....

The conclusion that leafleting is subject to the same kind of restrictions as picketing was premised on the incorrect assumption that both activities trigger similar effects. __The Board's conclusion cannot be accepted.

In summary, the legislative restriction in the present appeal is the type of blanket prohibition that this Court has indicated will contravene the Charter....

Similarly, in the present appeal, it is important to note that the respondent and the Attorney General have not demonstrated that a partial ban, such as a restriction on conventional picketing activity alone, would be less effective in achieving the government objective.

(c) Deleterious Effects and Benefits of the Restriction

I have found that the definition of "picketing" at s. 1(1) of the Code is overbroad and catches more expressive conduct than is necessary to achieve the legislative objective. __Accordingly, with regard to leafleting activity, the requirement of minimum impairment is not met. It is not necessary to proceed to the final stage of the proportionality analysis under s. 1 of the Charter....

C. Conclusion and Remedy

The definition of "picketing" at s. 1(1) of the Code infringes s. 2(b)...and is not a reasonable limit under s. 1. I would strike down the definition of "picketing" at s. 1 of the Code and suspend the declaration of invalidity for six months in order to allow the legislature to amend the provision to make it conform with the constitutional guarantee of freedom of expression as discussed in these reasons.

1. See also Allsco Building Products v. U.F.C.W., [1999] 2 S.C.R. 1126, a companion case to KMart. In circumstances quite similar to those in KMart, the New Brunswick Court of Appeal granted an injunction against the U.F.C.W., on grounds that Bastarache J.A., as he then was, found Dolphin Delivery determinative on the issue of secondary picketing.

The Supreme Court of Canada allowed the appeal on a point of statutory interpretation, which would permit peaceful picketing consistent with s.2(b), while maintaining the legislation=s prohibition on forms of persuasion that are coercive, threatening, or intended to cause undue influence.

2. Earlier, in MacMillan Bloedel Ltd. v. Simpson and Baker et al., (1994), 21 C.R.R.(2(d)) 116, the B.C. Court of Appeal rejected the s.2(b) claims of protesters who blockaded road access to M&B logging areas in the Clayoquot Sound area. In doing so, McEachern C.J.B.C. found that injunctions against the blockade did not impede Aany form of lawful expression@ but only enjoined obstruction of the road leading to M&B=s logging operations.@ In his view, the appellants were free to stand and express themselves verbally or symbolically anywhere on or alongside the roads, as long as they did not prevent the free flow of M&B traffic. In the circumstances, whereby appellants were on trial for contempt after ignoring an injunction, he concluded that A[r]epeated, unlawful disregard for the rights of others is not a proper context in which to extend unilateral rights of expression that can already be freely exercised by lawful means.@ [at 129]

3. In Daishowa v. Friends of the Lubicon (1998) 39 O.R. (3d) 620; 52 C.R.R. (2d) 7 [Ont. Gen. Div.], MacPherson J., as he then was, dismissed the company=s action for a permanent injunction to prevent a consumer boycott. The boycott took the form of a secondary picketing at the business locations of the company=s customers [i.e., Pizza Pizza, Cultures and etc.]. MacPherson J. drew a distinction between a labour dispute and a consumer boycott, which in his view, transcended the purely economic to engage important public issues. But then compare the cases dealing with abortion picketing, which are discussed in Chapter III, infra.

This case arises out of the dismantling of the Peace Camp which the appellant and others had erected on Parliament Hill in 1983 to protest cruise missile testing in Canada. ...

The learned Trial Judge found that the erecting or placing of the tents, tables, and other objects of the Peace Camp on the grounds of Parliament Hill did not, itself, convey a message. Rather, the appellant's message of political protest was conveyed to the public through other means, namely by engaging passers-by in conversation, by handing out printed leaflets, and by marching and carrying placards. [S]ince the physical presence of the Peace Camp did not itself convey a message, the appellant's establishing and maintaining of the Peace Camp did not amount to "expression". ...

On April 18, 1983, the appellant and others established a Peace Camp on Parliament Hill, consisting of seven tents, a literature table, and a banner reading "Peace Camp, People with People against the cruise". The participants decided to continue the Peace Camp the following day but the RCMP requested that the tents be removed from the Hill. When the participants refused, the RCMP dismantled the tents. However, the protest continued and from April 1983 to April 1985 the Peace Camp protestors maintained a presence on Parliament Hill, distributing literature and discussing the issue of cruise missile testing with by-standers. Although they were prevented from erecting proper tents, in the spring of 1983 the participants ... constructed a rudimentary shelter. ...

A more permanent shelter was constructed. ... The base of the structure was made out of two-by-fours and covered with carpeting. Aluminum poles were fastened to the base and covered with sheets of styrofoam and reflective aluminum paper. The outside of the structure was then covered with black and orange plastic sheeting. A banner, with the words "Peace Camp" in both French and English, was fastened to the side of the shelter. ...

[On] April 23, 1985, Cabinet passed an Order-in-Council amending the Public Works Nuisances Regulations. ... The sections relevant to this case read:

5. No person shall erect, construct or post any thing, material or object in or upon any public work other than in such places as are specifically designated for such purposes.

6. (2) No person shall erect, use, occupy or maintain any structure in or upon any public work except by or under the authority of the Minister.

The appellant and others made several more attempts to re-establish the Peace Camp during April 1985 but were warned each time by the RCMP of the new Regulations enacted on April 23, 1985. ... Three years later, in the fall of 1988 during the Federal general election, the appellant again tried to establish a presence on Parliament Hill.... On the morning of October 21, 1988, the appellant placed a small table there, with literature secured on its top, and a large banner was pegged onto the ground. The RCMP attended and demanded, relying on section 6 of the amended Regulations, that the appellant remove the structure. When he refused, the articles were seized by the police. The appellant resisted the removal of the articles, whereupon he was handed an appearance notice for refusing to comply with a demand from a police officer to vacate the grounds and another appearance notice for assaulting a police officer. ...

On the afternoon of October 21, 1988, the RCMP returned to find the appellant had erected a four-man tent on the lawn. The appellant was told to remove the tent from the Hill, but he refused. He was then charged with obstructing a police officer... . On November 12, 1988, the appellant once again put a table on the lawn and, this time, he tied himself to it and pegged a banner onto the ground. Again the RCMP made a formal demand to remove the table. When the appellant refused, he was arrested and the table and banner were seized. These events were repeated again [] on November 14, 1988. ...

1. Freedom of Expression

... With respect, I disagree with [the trial judge's] conclusion. It may be that a person walking by the Peace Camp would not immediately have realized that the appellant's specific message was "we don't want the Canadian government to accede to U.S. requests to test cruise missiles in northern Alberta". This does not mean, however, that the placing of the structure on Parliament Hill did not convey or attempt to convey a message. The act of private citizens building a very visible structure on the grounds of Parliament Hill, as well as maintaining a vigil there for more than two years, certainly conveys some kind of meaning. Similar Peace Camp protests were used in other countries at that time. This Camp was meant to link up with other similar protests. The structure itself, therefore, helped to dramatize the message the appellant was seeking to communicate. It also manifested the protestors' commitment to the cause.

In my view, expression goes beyond words. People may choose to amplify or dramatize their messages in many ways: a sandwich board, a soapbox, a megaphone, a flag, a banner, a placard, a picture, a petition, all can be used to convey a message or to assist one in conveying a message more effectively. These "props" are part and parcel of the manner in which one chooses to express oneself and are as deserving of protection as the words used to convey the meaning. The Peace Camp structures and the tables used are, therefore, included in the concept of expression.

Furthermore, in my view, to attract constitutional protection, the claimant need not establish that his or her message was received and subjectively understood or appreciated by others. It is the conveying or the attempted conveying of the meaning, not its receipt, that triggers the guarantee under paragraph 2(b). A person protesting in a foreign language or in sign language, though understood by no one in the vicinity, is equally entitled to protection as are those articulately expressing themselves in either official language.

Further, in this case, it does not matter whether the Peace Camp and its constituent structures successfully conveyed a message of peace, or of general protest, or of specific protest against the policy of the Federal Government .... It is enough that the appellant's conduct attempted to convey some meaning, which it clearly did.....

[It cannot] be said that the purpose of the Government action was to restrict the content of the appellant's expression. The Government's purpose was clearly to control only the physical consequences of the appellant's actions of expressing himself by erecting and maintaining a structure on Parliament Hill. This can be seen from the fact that the Government's action was directed solely at the appellant's erecting of the physical structure; it did not interfere with the appellant's ability to convey his message by other means such as by word of mouth, by carrying of placards and by the distribution of printed literature. ...

That being said, I think it is equally clear that the effect of the Government's actions... did restrict the appellant's freedom of expression. The means chosen by the respondents to control the physical consequences of the appellant's actions, i.e. exercising their common law right to evict him as a trespasser or demanding under the Regulations that he remove the shelter from the Hill, prevented him from expressing himself in the manner of his choice. The effect, therefore, restricted his freedom of expression. ...

1. Was the s. 1 analysis of this restriction on political expression strict enough? There, Linden, J.A. upheld s. 6(2) of the Public Works Nuisances Regulations and the Crown's common law right to prevent trespass and public nuisance on its property. He found that the objectives of s. 6(2) and the common law right were pressing and substantial given safety, health, maintenance and security concerns; theoretical considerations such as the dignity or decorum of Parliament Hill; and the fact that Parliament Hill is a powerful symbol of Canada, representing Canada's democratic tradition to its citizens, residents and visitors. Linden J.A. also found the government action (removing the Peace Camp shelter from Parliament Hill and preventing it from being re-erected) and s. 6(2) to be rationally connected to those objectives. Minimal impairment was satisfied because only the shelter was restricted, not the other means by which the appellant could communicate with the public. As well, the regulation was held not to be disproportional to the objectives.

[The Ontario Adult Entertainment Association applied to quash a Toronto bylaw which prohibited customers at striptease establishments from having any physical contact with the dancers, including "close contact" dancing. The Association argued that the bylaw was ultra vires the municipality's jurisdiction, that it infringed the criminal law jurisdiction of the federal government, and that it violated 2(b) of the Charter.

In recent years [lap dancing] has become the business of adult entertainment parlours in Metropolitan Toronto...

Metro submits that the by-law was enacted for the health and safety of the attendants and to assist in the prevention of crime, which are all valid municipal objectives. The task of the court is to characterize the by-law and to determine if it was enacted for valid municipal purposes....

There was evidence of some health risks from [lap dancing]. The general impression from the material is that the range of risk of disease is from negligible to small. For example, while there is a small risk of sexually transmitted disease, there has been no reported case. The risk...might be further reduced by taking steps that do not eliminate all physical contact.

[Some dancers] have experienced or witnessed unwanted contact. This makes them apprehensive that there will be further occurrences which might in some cases amount to sexual assault....The very nature of [lap dancing] as described in the material demonstrates the risk of criminal activity such as sexual assault....

Counsel for the applicant submits that the real reason for enacting the by-law was to stop lap dancing on moral grounds and that there is insufficient evidence to justify the by-law on the grounds of health, safety and the prevention of crime....

There is no requirement for council to have clear and cogent evidence before it passes a by-law....

In dealing with this issue the court may consider and draw inferences of risk from human nature, the nature of things and the social conditions of the time []....In our opinion the pith and substance of the impugned by-law was the protection of the health and safety of persons in adult entertainment parlours and the prevention of crime in licensed establishments. There may be a moral element in the effect of the by-law. Morality may be an ancillary purpose of a municipal by-law as long as morality is not the dominant purpose. In our view the applicant has failed to demonstrate that a moral concern was the dominant purpose of this by-law....

Freedom of Expression

We are of the opinion that the freedom of expression sought by the intervenors is trivial and insubstantial in relation to the "pursuit of truth, participation in the community and individual self-fulfilment and human flourishing."...[T]herefore, the constitutionally protected right of freedom of expression has not been breached, as [lap dancing] is not a constitutionally protected right.

If we are wrong as to [lap dancing] being a constitutionally protected right, then we are further of the view that the By-law is a justifiable limit under Section 1 of the Charter....

While exotic dancing is recognized as a form of expression, the purpose of the By-law is to protect the safety of the dancers. It is not aimed at limiting the expression itself, but at the potential harmful physical consequences....

The objective of the By-law is to prevent non-consensual physical contact that may be inflicted upon the female attendants by the customers in the adult entertainment bars. In our view there is a rational connection between the creation of the By-law; a minimal impairment of the right of freedom of expression and finally a proper balance between the effects of the limiting measure and the legislative objective.

[Note that the date of judgment for this case is October 30, 1995 and that on January 22, 1996 the Ontario Court of Appeal granted leave to appeal.]

1. Is the Court's s.2(b) analysis sound? Is it relevant, for example, whether the activity is considered trivial or substantial? Is it appropriate to limit s.2(b) by comparing the activity at stake to its ideals? That interpretation of the right would only protect expression that is compatible with prevailing conceptions of truth, participation and self-fulfilment.

2. Do you agree that the by-law was enacted to prevent harmful physical consequences rather than to express moral disapproval of lap dancing? See City of Renton v. Playtime Theatres, 106 S.Ct. 925 (1986), where the U.S. Supreme Court upheld a zoning ordinance which prohibited adult theatres from locating within 1,000 feet of any residential zone, dwelling, Church, park, or school. Writing for the majority, Justice Rehnquist reasoned that, while the ordinance on its face treated theatres that specialize in adult films differently from other kinds of theatres," its aim was not to restrict content, but rather to address "the secondary effects of such theatres in the community." The Court found that, despite appearances, the restriction was not content-based because the government defended it not by reference to the impact of the speech on the thoughts or beliefs of listeners, but with other reasons. The Court rejected the argument that the ordinance was under-inclusive because it didn't regulate other kinds of adult businesses that were likely to produce the same secondary effects as adult theatres. The mere fact that Renton chose to address the potential problems caused by one kind of adult business did not mean it had "singled out" adult theatres for discriminatory treatment.

In dissent, Justice Brennan called the majority's analysis misguided and flatly rejected Renton's claim that the ordinance was not designed to suppress the content of speech. He found that "both the language of the ordinance and its dubious legislative history" undermine the Court's conclusion that "the city's pursuit of its zoning interests...was unrelated to the suppression of free expression." In short, the city failed to justify treating adult movie theatres differently from other adult entertainment businesses. Brennan J. concluded that the law's "underinclusiveness is cogent evidence that it was aimed at the content of the films shown in adult movie theatres."

The City of Toronto in 1986, for the purpose of prohibiting the keeping of exotic animals as pets, enacted a by-law which prohibited anyone from keeping an exotic animal. The by-law exempted certain areas of the city such as the Toronto Humane Society Building, hospitals and certain institutions of higher learning.

A city councillor in 1991 received a complaint about a Siberian tiger working in a strip show at Jilly's Tavern. The tiger, when offstage, was displayed on a leash in a laneway near Queen and Broadview. Children approached it within arms length and a neighbourhood dog attracted the tiger's attention.

After a great deal of political debate the city at the urging of the councillor and others, on the basis of public safety and animal welfare generally, including the preservation of endangered species, amended the by-law. The focus of the debate turned largely on the pros and cons of exotic animal acts and circus shows using exotic animals.

The applicant moves ... to quash the by-law on the grounds that it infringes s. 2(b) [of the Charter]...

The evidentiary burden is upon the applicants to establish that the action of possessing and displaying exotic animals is "expression" ...

The applicant submits that the by-law was passed, in part, to prevent the dissemination of the intellectual message allegedly conveyed by exotic animal shows and the use of exotic animals in circuses that animals are subservient or demeaned in their relationship with humans. Although the applicant disavows this message, the applicant adduces no evidence that there is in fact any constitutionally protected message communicated through the medium of exotic animal shows or exotic animals in circus acts.

The corporate applicants have not established that they are attempting, through the medium of exotic animal use, to convey any message to any audience.

Although the applicant's material says that exotic animal acts constitute an exciting and entertaining form of artistic endeavour and that the relationship between animals and humans "wholly transcends the commonplace images of human society and the animal world", there is no evidence of the content of any ideas associated with the entertainment. The applicant did file some supplementary material, the admissibility of which is strongly resisted by the city, which adds slightly to the bald statement of artistry and refers to "circus culture". Even if we were to hold the supplementary material admissible, the applicant's evidence amounts to no more than a bald statement of subjective opinion, unsupported by any objective evidence or systematic body of knowledge tending to show that exotic animal shows are a form of artistic expression or symbolic speech that expresses, in fact, some kind of meaning or message. ...

The applicant has adduced virtually no evidence to discharge its burden to show that the public display of exotic animals amounts to "expression" ... [and has] not established any breach of freedom of expression.

[The Divisional Court's dismissal of the application was overturned by the Court of Appeal, at (1993), 12 O.R. (3d) 646, 101 D.L.R. (4th) 614, on alternative grounds which did not address expressive freedom.]

1. Do you agree with the conclusion that circus performances involving animals are not expressive under s.2(b)? Presumably the Court would not apply that same conclusion to other types of live performance. On what grounds, then, is this form of entertainment excluded - that the use of animals compromises its status as expression? How so?

Note that the First Amendment states that Congress shall not abridge "the freedom of speech". Hence the importance, in American doctrine, of the speech-conduct distinction. Early in the evolution of the First Amendment jurisprudence, the U.S. Supreme Court protected expressive activities which were not speech per se - a red flag display [Stromberg v. California, 283 U.S. 359 (1931)], and freedom from compulsory flag salute [West Virginia Bd. Of Education v. Barnette, 319 U.S. 624 (1943)]. During the 1960s, which generated a variety of mass demonstrations and new forms of protest, the Court was ambivalent about the status of "expressive conduct" under the First Amendment. In Cox v. Louisiana, 379 U.S. 559 (1965), for example, Justice Black argued in dissent that the First Amendment does not grant a constitutional right "to engage in the conduct of picketing or patrolling.... Picketing, though it may be utilized to communicate ideas, is not speech and therefore is not of itself protected by the First Amendment."[emphasis added]. Subsequently, however, a majority held that the symbolic act of wearing black armbands in school to protest the Vietnam War was "closely akin to pure speech"; Tinker v. Des Moines School Dist.., 393 U.S. 503 (1969). Tinker was preceded by O'Brien, which is considered significant for the distinction the Court drew between "speech plus" [speech that includes an element of conduct] and "pure speech".

[O'Brien and three others were charged after they burned their draft cards on the steps of a Boston courthouse, under federal legislation which made it an offence for any person to forge, alter, knowingly destroy or mutilate, or in any way change his draft card.]

... [O'Brien's] argument is that the ... First Amendment [] includes all modes of "communication of ideas by conduct," and that his conduct is within this definition because he did it in "demonstration against the war and against the draft." We cannot accept the view that an apparently limitless variety of conduct can be labelled "speech" whenever the person engaging in the conduct intends thereby to express an idea. ... This Court has held that when "speech" and "non-speech" elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms.... [We] think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. We find that the [draft card provision meets] all of these requirements... . [Pursuant to its power] to classify and conscript manpower for military service, [Congress] may establish a system of registration [and] may require such individuals within reason to cooperate in the registration system. The issuance of certificates indicating the registration and eligibility classification of individuals is a legitimate and substantial administrative aid in the functioning of this system. And legislation to insure the continuing availability of issued certificates serves a legitimate and substantial purpose in the system's administration....

It is equally clear that the [prohibition] specifically protects this substantial governmental interest. We perceive no alternative means that would more precisely and narrowly assure the continuing availability of issued Selective Service certificates than a law which prohibits their wilful mutilation or destruction. [It] prohibits such conduct and does nothing more. In other words, both the governmental interest and the operation of the [provision] are limited to the noncommunicative aspect of O'Brien's conduct.... When O'Brien deliberately rendered unavailable his registration certificate, he wilfully frustrated th[e] governmental interest [in the smooth and efficient functioning of the Selective Service System]. For this noncommunicative impact of his conduct, and for nothing else, he was convicted....

1. Would the result have been any different if O'Brien had stood on the steps of the courthouse, loudly verbalizing the message his card-burning display depicted? See Street v. New York, 394 U.S. 576 (1969)(reversing a conviction for flag-burning: there, because the accused simultaneously denounced the flag verbally while engaging in the act of burning it, it was impossible to determine whether he had been punished for the act of flag-burning or for the words he uttered).

2. Does O'Brien's display satisfy Irwin Toy's requirement of attempting to convey meaning?

3. Note the First Amendment's categories: "akin to pure speech" (Tinker); "speech plus" (Cox II); and mixed speech and conduct (O'Brien). Primarily, they seem to affect the level of review that is applied. Do you think that similar categories or distinctions might be useful under s.1, to determine what level of review is appropriate; i.e., should a lower standard apply to expressive activity that is more conduct than speech; should a stricter version of Oakes be used for expressive activity that is closer to pure speech?

4. Should the Court have been stricter in its assessment of the state's justification for punishing O'Brien in the circumstances of a highly political message? Was O'Brien convicted because the message he delivered was politically unacceptable, or because burning a draft card is in principle less expressive and therefore entitled to less protection under the First Amendment?

5. Did the prohibition against tampering with his draft card impose an incidental limitation on O'Brien's First Amendment rights? Does the fact he remained free to protest the war in other ways justify the censorship of this particular form of protest?

Flag-burning remains a divisive issue in the U.S.. Even though flag desecration is more like conduct than speech, Texas v. Johnson refused to apply O'Brien because Johnson's flag-burning display was expressive and the state's decision to regulate was not unrelated to the suppression of free expression.

After publicly burning an American flag as a means of political protest, Gregory Lee Johnson was convicted of desecrating a flag in violation of Texas law. ...

Johnson was convicted of flag desecration for burning the flag rather than for uttering insulting words.... We must first determine whether Johnson's burning of the flag constituted expressive conduct, permitting him to invoke the First Amendment.... If his conduct was expressive, we next decide whether the State's regulation is related to the suppression of free expression []. If the State's regulation is not related to expression, then the less stringent standard we announced in [O=Brien] for regulations of noncommunicative conduct controls. [ ] ...

The First Amendment literally forbids the abridgement only of "speech," but we have long recognized that its protection does not end at the spoken or written word. While we have rejected "the view that an apparently limitless variety of conduct can be labelled 'speech' whenever the person engaging in the conduct intends thereby to express an idea," [ ], we have acknowledged that conduct may be "sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments." [ ]

In deciding whether particular conduct possesses sufficient communicative elements to bring the First Amendment into play, we have asked whether "(a)n intent to convey a particularized message was present, and (whether) the likelihood was great that the message would be understood by those who viewed it." Hence, we have recognized the expressive nature of students' wearing of black armbands to protest American military involvement in Vietnam; of a sit-in by blacks in a "whites only" area to protest segregation; of the wearing of American military uniforms in a dramatic presentation criticizing American involvement in Vietnam; and of picketing about a wide variety of causes.

Especially pertinent to this case are our decisions recognizing the communicative nature of conduct relating to flags. ... That we have had little difficulty identifying an expressive element in conduct relating to flags should not be surprising. The very purpose of a national flag is to serve as a symbol of our country. ...

Pregnant with expressive content, the flag as readily signifies this Nation as does the combination of letters found in "America." ... Johnson burned an American flag as part--indeed, as the culmination--of a political demonstration that coincided with the convening of the Republican Party and its renomination of Ronald Reagan for President. The expressive, overtly political nature of this conduct was both intentional and overwhelmingly apparent.... In these circumstances, Johnson's burning of the flag was conduct "sufficiently imbued with elements of communication," [ ] to implicate the First Amendment.

[The O=Brien standard for "noncommunicative conduct"did not apply because the state prosecuted Johnson because of the expressive content of his flag-burning demonstration.]

1. Is there any relevant difference between burning a flag and burning a draft card: both seem more akin to conduct than speech. Can there be any doubt that O=Brien's card burning was intended to be and was understood as an expression of his opposition to the War? Does that suggest that Johnson implicitly overrules O=Brien? Alternatively, should Johnson be understood as a decision that deals only with the flag as a unique national symbol?

2. Consider the following passage from Chief Justice Rehnquist's dissenting opinion:

The result of the Texas statute is obviously to deny one in Johnson's frame of mind one of many means of 'symbolic speech'. Far from a case of "one picture being worth a thousand words", flag burning is the equivalent of an inarticulate grunt or roar that ... is most likely to be indulged in not to express any particular idea, but to antagonize others.... The Texas statute deprived Johnson of only one rather inarticulate symbolic form of protest -- a form of protest that was profoundly offensive to others -- and left him with a full panoply of other symbols and every conceivable form of verbal expression to express his disapproval of national policy.... It was Johnson's use of this particular symbol, and not the idea that he sought to convey by it ... for which he was punished.

If, as Justice Rehnquist suggests, Johnson was otherwise free to engage in political protest through verbal means, why should he be entitled to claim constitutional protection for his conduct? Is Rehnquist's a valid point?

3. Brennan J. relied on Spence v. Washington, 418 U.S. 305 (1974) [which reversed a conviction for "improper use" of the flag - Spence attached a large peace symbol to the U.S. flag.] There, the Court held in part:

[T]he State concedes [that Spence] engaged in a form of communication. [That] concession is inevitable on this record. [To] be sure, [Spence] did not choose to articulate his views through printed or spoken words. It is therefore necessary to determine whether his activity was sufficiently imbued with elements of communication to fall within the scope of the First [Amendment]. [The] nature of [Spence's] activity, combined with the factual context and environment in which it was undertaken, lead to the conclusion that he engaged in a form of protected expression.

Moreover, the context in which a symbol is used for purposes of expression is important, for the context may give meaning to the symbol. In this case, [Spence's] activity was roughly simultaneous with and concededly triggered by the Cambodian incursion and the Kent State tragedy, [issues] of great public moment. A flag bearing a peace symbol and displayed upside down by a student today might be interpreted as nothing more than bizarre behavior, but it would have been difficult for the great majority of citizens to miss the drift of [Spence's] point at the time that he made it. It may be noted, further, that this was not an act of mindless nihilism. Rather, it was a pointed expression of anguish [about] the then current domestic and foreign affairs of his government. An intent to convey a particularized message was present, and in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it.

What are the elements of Spence's test? Do you agree that all these elements must be present for activity to be protected by a constitutional guarantee of expressive freedom?

4. How would an act of flag desecration be analyzed under the Charter? Is there any doubt under the first step of Irwin Toy? If not, is the Charter's definition of expression too generous?

5. What about a statute that prohibits anyone from wearing a "mask, hood, or device" to conceal identity? Are members of the Ku Klux Klan communicating any message when they wear white hoods? [See Georgia v. Miller, 398 S.E. 2d 547 (1990), (rejecting a 1^st amendment defence raised by a member of the KKK prosecuted under this statute). See also National Socialist Party v. Skokie, infra, Chapter VI (upholding the Nazi party's right to wear swastikas in a predominantly Jewish neighbourhood).

Respondents are two establishments in South Bend, Indiana, that wish to provide totally nude dancing as entertainment, and individual dancers who are employed at these establishments.... [A]n applicable Indiana statute regulating public nudity requires that the dancers wear "pasties" and a "G-string"...

... [N]ude dancing of the kind sought to be performed here is expressive conduct within the outer perimeters of the First Amendment, though we view it as only marginally so....

Indiana, of course, has not banned nude dancing as such, but has proscribed public nudity across the board. The Supreme Court of Indiana has construed the Indiana statute to preclude nudity in what are essentially places of public accommodation such as the Glen Theatre and the Kitty Kat Lounge....

The "time, place, or manner" test was developed for evaluating restrictions on expression taking place on public property which had been dedicated as a "public forum," ... In Clark we observed that this test has been interpreted to embody much the same standards as those set forth in [O=Brien], and we turn, therefore, to [that] rule....

Applying [O=Brien], we find that Indiana's public indecency statute is justified despite its incidental limitations on some expressive activity. The public indecency statute is clearly within the constitutional power of the State and furthers substantial governmental interests. ... Public indecency statutes such as the one before us reflect moral disapproval of people appearing in the nude among strangers in public places. ...

This interest is unrelated to the suppression of free expression. Some may view restricting nudity on moral grounds as necessarily related to expression. We disagree. It can be argued, of course, that almost limitless types of conduct--including appearing in the nude in public--are "expressive," and in one sense of the word this is true. People who go about in the nude in public may be expressing something about themselves by so doing. But the court rejected this expansive notion of "expressive conduct".... [I]n Dallas v. Stanglin, 490 U.S. 19, we [] observed:

It is possible to find some kernel of expression in almost every activity a person undertakes--for example, walking down the street or meeting one's friends at a shopping mall--but such a kernel is not sufficient to bring the activity within the protection of the First Amendment. ...

Respondents contend that even though prohibiting nudity in public generally may not be related to suppressing expression, prohibiting the performance of nude dancing is related to expression because the state seeks to prevent its erotic message....

But we do not think that when Indiana applies its statute to the nude dancing in these nighclubs it is proscribing nudity because of the erotic message conveyed by the dancers.... [T]he requirement that the dancers don pasties and a G-string does not deprive the dance of whatever erotic message it conveys; it simply makes the message slightly less graphic. The perceived evil that Indiana seeks to address is not erotic dancing, but public nudity. The appearance of people of all shapes, sizes and ages in the nude at a beach, for example, would convey little if any erotic message, yet the state still seeks to prevent it. Public nudity is the evil the state seeks to prevent, whether or not it is combined with expressive activity....

It was assumed that O=Brien's act in burning the certificate had a communicative element ... but it was for the non-communicative element that he was prosecuted. So here with the Indiana statute; while the dancing to which it was applied had a communicative element, it was not the dancing that was prohibited, but simply its being done in the nude.

The fourth part of the [O=Brien] test requires that the incidental restriction on First Amendment freedom be no greater than is essential to the furtherance of the governmental interest. ... It is without cavil that the public indecency statute is "narrowly tailored;" Indiana's requirement that the dancers wear at least pasties and a G-string is modest, and the bare minimum necessary to achieve the state's purpose.

... [T]he challenged regulation must be upheld... as a general law regulating conduct and not specifically directed at expression [which] it is not subject to First-Amendment scrutiny at all. ...

Not all dancing is entitled to First Amendment protection as expressive activity. This Court has previously categorized ballroom dancing as beyond the Amendment's protection, [ ] and dancing as aerobic exercise would likewise be outside the First Amendment's concern. But dancing as a performance directed to an actual or hypothetical audience gives expression at least to generalized emotion or feeling, and where the dancer is nude or nearly so the feeling expressed, in the absence of some contrary clue, is eroticism, carrying an endorsement of erotic experience. Such is the expressive content of the dances described in the record.

Although such performance dancing is inherently expressive, nudity per se is not. It is a condition, not an activity, and the voluntary assumption of that condition, without more, apparently expresses nothing beyond the view that the condition is somehow appropriate to the circumstances. But every voluntary act implies some such idea, and the implication is thus so common and minimal that calling all voluntary activity expressive would reduce the concept of expression to the point of the meaningless. A search for some expression beyond the minimal in the choice to go nude will often yield nothing: a person may choose nudity, for example, for maximum sunbathing. But when nudity is combined with expressive activity, its stimulative and attractive value certainly can enhance the force of expression, and a dancer's acts in going from clothed to nude, as in a strip-tease, are integrated into the dance and its expressive function. Thus I agree with the plurality and the dissent that an interest in freely engaging in the nude dancing at issue here is subject to a degree of First Amendment protection.

I also agree with the plurality that [O=Brien is] the appropriate analysis.... I nonetheless write separately to rest my concurrence ... on the State's substantial interest in combating the secondary effects of adult entertainment establishments of the sort typified by respondents' establishments. ... In my view, the interest asserted by petitioners in preventing prostitution, sexual assault, and other criminal activity, although presumably not a justification for all applications of the statute, is sufficient [] to justify the State's enforcement of the statute against the type of adult entertainment at issue here....

... Since the State permits the dancers to perform if they wear pasties and G-strings but forbids nude dancing, it is precisely because of the distinctive, expressive content of the nude dancing performances at issue in this case that the State seeks to apply the statutory prohibition. It is only because nude dancing performances may generate emotions and feelings of eroticism and sensuality among the spectators that the State seeks to regulate such expressive activity, apparently on the assumption that creating or emphasizing such thoughts and ideas in the minds of the spectators may lead to increased prostitution and the degradation of women. But generating thoughts, ideas, and emotions is the essence of communication. The nudity element of nude dancing performances cannot be neatly pigeonholed as mere "conduct" independent of any expressive component of the dance. ...

That the performances in the Kitty Kat Lounge may not be high art ... is hardly an excuse for distorting and ignoring settled doctrine. The Court's assessment of the artistic merits of nude dancing performances should not be the determining factor....

If the State is genuinely concerned with prostitution and associated evils ... it can adopt restrictions that do not interfere with the expressiveness of non-obscene nude dancing performances. For instance, the State could perhaps require that, while performing, nude performers remain at all times a certain minimum distance from spectators, that nude entertainment be limited to certain hours, or even that establishments providing such entertainment be dispersed throughout the city. ... Likewise, the State clearly has the authority to criminalize prostitution and obscene behavior. Banning an entire category of expressive activity, however, generally does not satisfy the narrow tailoring requirement of strict First Amendment scrutiny. ...

1. How should public nudity be classified for constitutional purposes: as a gratuitous condition devoid of expressive meaning; as per se expressive; or as expressive but only as a matter of contextual interpretation?

2. Is this a form of censorship, which suppresses the content of an activity? What is being regulated: the content of the message or its form? Does the characterization matter?

3. Compare with R. v. Mara, supra.

4. Is prevention of secondary consequences a more legitimate justification than enforcement of morals? In Canada, would minimal impairment be satisfied: surely it is less restrictive for the state to prohibit those consequences when they occur than to prohibit the antecedent expressive activity.

5. See R. v. Zikman, (1990) 37 O.A.C. 277 (upholding a conviction under s.174 of the Criminal Code, prohibiting public nudity, without reaching s.2(b)).

The central issue on this appeal is whether the prohibition of begging and panhandling in the New York City subway system violates the First Amendment... . On this appeal the plaintiffs contend that "begging is pure speech fully protected by the First Amendment." ...

Common sense tells us that begging is much more "conduct" than it is "speech".... In determining "whether particular conduct possesses sufficient communicative elements to bring the First Amendment into play," the Supreme Court asks "whether '[a]n intent to convey a particularized message was present, and [whether] the likelihood was great that the message would be understood by those who viewed it.') For example, the Supreme Court has recognized the "expressive nature" in the burning of a United States flag by a protestor during a political march at the Republican National Convention, [ ] in the wearing of black arm-bands by school students on particular days in protest of the Vietnam War, [] in the peaceful picketing by union members of a supermarket in a large shopping centre to protest unfair labour practices, [] and in conducting a silent sit-in by black persons against a library's segregation policy. [] We note that in all of these cases there was little doubt from the circumstances of the conduct that it formed a clear and particularized political or social message very much understood by those who viewed it. ... In other words, the conduct and the expression were inextricably joined.

Pursuant to the criteria [above] begging is not inseparably intertwined with a "particularized message." It seems fair to say that most individuals who beg are not doing so to convey any social or political message. Rather, they beg to collect money. Arguably, any given beggar may have "[a]n intent to convey a particularized message," e.g.: "Government benefits are inadequate;" "I am homeless;" or "There is a living to be made in panhandling." To be sure, the possibilities are myriad. However, despite the intent of an individual beggar, there hardly seems to be a "great likelihood" that the subway passengers who witness the conduct are able to discern what the particularized message might be.

... In the subway, it is the conduct of begging and panhandling, totally independent of any particularized message, that passengers experience as threatening, harassing and intimidating. Unlike burning a flag, wearing a black arm-band, sitting or marching, begging in the subway is experienced as transgressive conduct whether devoid of or inclusive of an intent to convey a particularized message. ... Given the passengers' apprehensive state of mind, it seems rather unlikely that they would be disposed to focus attention on any message, let alone a tacit and particularized one.

The only message that we are able to espy as common to all acts of begging is that beggars want to exact money from those whom they accost. While we acknowledge that passengers generally understand this generic message, we think it falls far outside the scope of protected speech under the First Amendment. ...

Whether with or without words, the object of begging and panhandling is the transfer of money. Speech simply is not inherent to the act; it is not of the essence of the conduct....

[T]he plaintiffs also argue that there is no meaningful distinction between begging and other types of charitable solicitation... While organized charities serve community interests by enhancing communication and disseminating ideas, the conduct of begging and panhandling in the subway amounts to nothing less than a menace to the common good.[ ] ...

Assuming arguendo that begging and panhandling possess some degree of a communicative nature, we next inquire whether [this prohibition violates] the First Amendment [pursuant to O=Brien]. ... Generally speaking, this more lenient level of judicial scrutiny requires us to weigh the extent to which expression is in fact inhibited against the governmental interest in proscribing particular conduct.... Here, on balance, the governmental interests must prevail....

[T]he regulation advances substantial governmental interests.... Begging is "inherently aggressive" to the "captive" passengers in the close confines of the subway atmosphere.... [I]t is fair to say that whether intended as so, or not, begging in the subway often amounts to nothing less than assault, creating in the passengers the apprehension of imminent danger. Additionally, begging in the subway raises legitimate concerns about public safety. ... In short, the TA's judgment that begging is alarmingly harmful conduct that simply cannot be accommodated in the subway system is not unreasonable....

[T]he regulation relies on governmental interests unrelated to the suppression of free expression.... Like O=Brien, the case now at bar involves proscription of conduct for reasons completely unrelated to the alleged communicative impact of the conduct. There is nothing in the record to suggest even remotely that the TA's interests in stopping begging arise because the TA objects to a particularized idea or message. To the contrary, the TA regulation is simply not directed at any expressive aspect of the proscribed conduct.... [B]egging poses significant dangers to the subway system.... These dangers, independent of the alleged communicative character of begging, give rise to the regulation....

Based on its experience, the TA obviously reached a judgment that the only effective way to stop begging in the system was through the enforcement of a total ban.... In addition, the regulation at issue "leave[s] open ample alternative channels of communication." [ ] Under the regulation, begging is prohibited only in the subway, not throughout all of New York City. It is untenable to suggest, as do the plaintiffs, that absent the opportunity to beg and panhandle in the subway system, they are left with no means to communicate to the public about needy persons. ...

... According to the majority, common sense tells us that begging enjoys no First Amendment protection because it is conduct unassociated with any particularized message and because begging, unlike "charitable solicitation," is mere solicitation for money with a diminished communicative content.... [However] both beggars and organized charities who send representatives into the subway have one primary goal: in the words of the majority, "the transfer of money." ... Nevertheless, in [Schaumberg] the Supreme Court saw fit to extend First Amendment protection to the fundraising efforts of organized charities. In my opinion, beggars deserve that same protection.

In Schaumberg, the Court held that ... First Amendment protection attaches to all charitable solicitation, whether or not any speech incident to the solicitation actually takes place, because a sufficient nexus exists between a charity's expression of ideas and its fundraising. That is, a charity's representatives often explain the purpose of the charity's work to potential donors and perhaps engage in a discussion regarding social issues. In addition, the receipt of donations is essential to the continued existence of a charity....

Plaintiffs ... [state] that they often speak with potential donors about subjects such as the problems of the homeless and poor, the perceived inefficiency of the social service system in New York and the dangerous nature of the public shelters in which they sometimes sleep. The speech and association inherent in these encounters is without doubt protected by the First Amendment. [ ] Similarly, a beggar who holds a sign saying "Help the Homeless" or "I am hungry" is engaged in First Amendment activity.[ ]. Any attempt to distinguish between beggars who hold signs or engage in discussions and those who simply ask for money would be unrealistic. ...

[Moreover, to distinguish between charities and panhandlers] would mean that an individual's plight is worthy of less protection in the eyes of the law than the interests addressed by an organized group. ... This conclusion is further compelled by defendants' failure to submit any evidence that charitable solicitation does not have the same adverse effects (e.g., impeding traffic, intimidating passengers) that begging is claimed to have....

In sum, begging is speech protected by the First Amendment that may be regulated, but not entirely prohibited.... I recognize that the presence of large numbers of beggars in the subway presents a serious problem for the TA and contributes to the sense of chaos and frustration experienced by the many hard-working New Yorkers who rely on the subway system.... I simply fail to see why the TA should be able to permit organized charities, but not beggars, to rattle a cup full of change as one passes by....

1. Why the requirement that expressive activity advance "a particularized message"? In any event, what is a particularized message: the particular message the speaker attempts to convey, or whatever particular interpretation the listener gives that message? Why should the listener's perception determine the constitutional status of expressive activity ?

2. Do you see any difference between solicitation for a charitable cause and solicitation for the necessities of life? Why should the first be regarded as a higher form of communication? Note that commercial expression, including solicitation for the purpose of prostitution, is protected by s.2(b); The Prostitution Reference, [1990] 1 S.C.R. 1226. In terms of the effect solicitation may have on listeners, is panhandling inherently more annoying, intimidating or harassing than solicitation for religious, political or social causes?

3. Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984), considered whether a National Park Service regulation prohibiting camping in certain parks violated the First Amendment. Demonstrators proposed to "sleep" in Lafayette Park and the Mall in order to protest and call attention to the plight of the homeless. Two aspects of the U.S. Supreme Court's decision are significant. First, the Court assumed, in the circumstances, that overnight sleeping in a national park was expressive conduct for purposes of the First Amendment. Second, however, a majority concluded that the camping prohibition was a reasonable time, place, or manner restriction. By contrast, the dissenting opinion argued that the sleep-in was the speakers' most effective way of communicating their message and therefore, that the state could not justify its prohibition against camping in the circumstances of this case.

4. Both Clark and Young are public forum cases which consider whether a speaker is entitled to use public property for First Amendment purposes. In both cases the "time, place and manner" doctrine was relevant; however, each also raise important questionsabout the speech-conduct distinction. Is "sleeping" more communicative than "begging"? Despite Clark, Young held that homeless individuals are not protected by the Constitution when they attempt to draw attention to their plight through alternative means: to wit, begging. Was Young wrongly decided?

The second step of Irwin Toy's test, which distinguishes between the purpose and effect of the interference with expressive freedom, was problematic. To begin, the prohibition against "purposeful" interferences can be interpreted at least two different ways. A prohibition against purposeful interference with expressive freedom can mean that the Charter denies the government the authority to draw any distinction between communicative activity based on its content. Any suppression of expression which is based on its content is in essence a deliberate decision to favour or disfavour certain messages. Some of the discussion in Irwin Toy supports that interpretation of the test.

Irwin Toy's prohibition against purposeful interference can also be equated with an improper motive. On that view, government action which interferes with expressive activity may fall outside the prohibition against purposeful interference, as long as some other legitimate purpose can be articulated. Canadian Newspapers Co. v. Victoria (1989), 63 D.L.R. (4) 1 [B.C.C.A.], is a case in point. There, the B.C. Court of Appeal held that Victoria's prohibition against the placement of newspaper vending boxes on City property did not violate s. 2(b). In reaching that conclusion, Taggart J. A. stated, as follows:

I think it is important to consider carefully the scope of the freedom of expression ... since failure to do so may have the effect of trivializing this fundamental freedom. It is all too easy to accept all suggested infringements and limitations ... and then to justify them through the application of s.1... If that easy course is followed it will give s.2 and perhaps other sections of the Charter a penumbra of trivia which will obscure the real substance of the freedoms and rights. ...

 

... The purpose of the City was to control the use of its property so its aesthetic appearance would be preserved.... In my opinion the City has demonstrated purposes for refusing to permit vending boxes to be placed on its property which are not aimed at the appellant's freedom of expression but rather are in furtherance of the City's own legitimate interests.

[T]he effect of the City's policy and by-laws is minimal....

 

How can a prohibition of this kind be anything but purposeful? Does the City's reliance on an aesthetic rationale negate that purpose? Is that rationale relevant under s. 2(b)? Note, in that regard, that a conclusion that s. 2(b) has not been violated because the government's purpose was legitimate renders a proportionality analysis under s.1 unnecessary. Part 1 of the Oakes test is conducted, instead, under s. 2(b), and its other requirements are avoided.

The confusion deepened following the Supreme Court of Canada's decision in Lavigne v. OPSEU, [1991] 1 S.C.R. 211, which held that legislation authorizing mandatory dues check-off did not violate s. 2(b) because its purpose was industrial harmony, not interference with expressive freedom. Once again, the Court appeared to conflate Irwin Toy's concept of purposeful interference with the requirement of a pressing and substantial objective. Once again, the result was to avoid the necessity of any proportionality analysis.

Though it remains unclear whether the second step was designed to separate content-based and content-neutral legislation, or to examine the legitimacy of the government's objective, the purpose-effect test is seldom applied to restrict the right. Whether there is any attempt to convey meaning effectively defines the scope of s.2(b).

In its next decision after Irwin Toy, the Supreme Court continued to give s.2(b) a generous interpretation. In Edmonton Journal the Court invalidated a legislative provision that imposed a ban on the publication of information disclosed in civil proceedings. There Wilson J. wrote a concurring opinion that suggested a "contextual approach" to the balancing of values under s.1. This concept and Irwin Toy's definition of expressive freedom are the two building blocks of the s.2(b) jurisprudence. This section traces the development of the contextual approach and explains how the Court integrated Wilson J.'s concept of context into the Oakes test, which was not designed to balance values but instead, to test the permissibility of the government's decision to infringe the Charter's rights and freedoms.

[A majority of the Court (La Forest, L'Heureux-Dubé and Sopinka JJ. dissenting under s. 2(b) invalidated s. 30 of the Alberta Judicature Act, which imposed a ban on the publication of information about matrimonial proceedings. Madam Justice Wilson wrote a concurring opinion which suggested that the Court adopt a "contextual approach" under s. 1. See infra Chapter XII.]

... In my view, this case raises an important issue regarding the proper method of application of the Charter to individual cases ... .

Of the two possible approaches to the Charter's application one might be described as the abstract approach and the other the contextual approach. While the mechanics of application, i.e., the proper analytical steps to be taken are the same under each, which one is adopted may tend to affect the result of the balancing process called for under s. 1.

Under each approach it is necessary to ascertain the underlying value which the right alleged to be violated was designed to protect. This is achieved through a purposive interpretation of Charter rights. It is also necessary under each approach to ascertain the legislative objective sought to be advanced by the impugned legislation. This is done by ascertaining the intention of the legislator in enacting the particular piece of legislation. When both the underlying value and the legislative objective cannot be achieved without some infringement of the right, it must then be determined whether the impugned legislation constitutes a reasonable limit on the right which can be demonstrably justified in a free and democratic society.

It seems to me that under the abstract approach the underlying value sought to be protected by s. 2(b) ... is determined at large as my colleague Cory J. has done. He finds freedom of expression to have been fundamental to the historical development of our political, social and educational institutions in Canada. He emphasizes the seriousness of restricting the free exchange of ideas and opinions in a democratic form of society and concludes that it is difficult to imagine a more important right in a democracy than freedom of expression.

I do not disagree with my colleague that freedom of expression plays that vital role in a political democracy. The problem is that the values in conflict in the context of this particular case are the rights of litigants to the protection of their privacy in matrimonial disputes and the right of the public to an open court process. Both cannot be fully respected. One must yield to the exigencies of the other. I ask myself therefore whether a contextual approach in balancing the right to privacy against freedom of the press under s. 1 is not more appropriate than an approach which assesses the relative importance of the competing values in the abstract or at large.

It is of interest to note in this connection that La Forest J. completely agrees with Cory J. about the importance of freedom of expression in the abstract. He acknowledges that it is fundamental in a democratic society. He sees the issue in the case, however, as being whether an open court process should prevail over the litigant's right to privacy. In other words, while not disputing the values which are protected by s. 2(b) as identified by Cory J., he takes a contextual approach to the definition of the conflict in this particular case. Notwithstanding the enormous importance of freedom of expression in a political context, he finds that it must yield in the context of this case to the litigant's right to privacy. The impugned legislation is accordingly, in his view, a reasonable limit on freedom of the press. Cory J. reaches the converse conclusion and the concern raised is whether the difference in result may be conditioned by the methodology adopted in assessing the importance of the values in conflict.

One thing seems clear and that is that one should not balance one value at large and the conflicting value in its context. To do so could well be to pre-judge the issue by placing more weight on the value developed at large than is appropriate in the context of the case...

One virtue of the contextual approach, it seems to me, is that it recognizes that a particular right or freedom may have a different value depending on the context. It may be, for example, that freedom of expression has greater value in a political context than it does in the context of disclosure of the details of a matrimonial dispute. The contextual approach attempts to bring into sharp relief the aspect of the right or freedom which is truly at stake in the case as well as the relevant aspects of any values in competition with it. It seems to be more sensitive to the reality of the dilemma posed by the particular facts and therefore more conducive to finding a fair and just compromise between the two competing values under s. 1.

It is my view that a right or freedom may have different meanings in different contexts. Security of the person, for example, might mean one thing when addressed to the issue of over-crowding in prisons and something quite different when addressed to the issue of noxious fumes from industrial smokestacks. It seems entirely probable that the value to be attached to it in different contexts for the purpose of the balancing under s.1 might also be different. It is for this reason that I believe that the importance of the right or freedom must be assessed in context rather than in the abstract and that its purpose must be ascertained in context. This having been done, the right or freedom must then, in accordance with the dictates of this court, be given a generous interpretation aimed at fulfilling that purpose and securing for the individual the full benefit of the guarantee....

[Wilson J. found that the legislation was not carefully tailored and did not pass the proportionality test.]

1. Taken together, Irwin Toy and Oakes proposed an extraordinarily abstract approach to questions of expressive freedom. Irwin Toy's definition of expression was both abstract and "near-absolute"; as such, it provided few mechanisms for the balancing of values or the evaluation of claims. By the same token the Oakes test at that time was strict and abstract, and likewise did not contemplate any balancing of values, except, perhaps, under final proportionality. In such circumstances, Wilson J.'s proposal enabled the Court tobalance values under s.1 and to decide cases on their particular facts and circumstances, rather than purely by reference to abstract principle. In addition, it unquestionably had intuitive appeal to judges who were struggling with the relationship between ss.2(b) and 1, and trying to adapt common law methods of decision-making to the challenge of constitutional analysis under the Charter.

2. What Edmonton Journal proposed was really no more than a principle of interpretation; i.e., that the context of competing values should form part of the s.1 analysis. Nowhere does Wilson J. explain how her approach could be integrated into the Oakes test. That task would not be undertaken until the decision in R. v. Keegstra.

3. Meanwhile, differentiating between competing interests and values is inherent in the concept of balancing. Three aspects of Edmonton Journal are important in that regard. First the suggestion that freedom of expression has greater value in a political context than in a matrimonial dispute introduced an assessment of values into the analysis which was at least potentially inconsistent with Irwin Toy's proposition that all expression is equally protected under s.2(b). Second, the emphasis Wilson J. placed on context under s.1, as a response to or remedy for the abstractness of s.2(b), once again potentially discounted the role of principle in constitutional analysis. Finally, comparing values and interests under s.1, to determine which should be preferred in any case, fundamentally altered the nature of s.1 review: instead of focusing on the justifiability of the government's infringement, the analysis began to shift its attention to the content or value of the expressive activity under s.1.

[The Court invalidated restrictions on professional advertising by dentists. Though the approach Irwin Toy took in upholding Quebec's child advertising law might have seemed applicable, McLachlin J. relied instead on the contextual approach Wilson J. proposed in Edmonton Journal. See infra Chapter VIII on Commercial Expression.]

... This case poses a conflict between two values recognized in our society -- the need to regulate the scope of professional advertising on the one hand and the value of free expression on the other....

Although it has been clearly held that commercial expression [is within] s. 2(b), [ ] the fact that expression is commercial is not necessarily without constitutional significance. Regulation of advertising may offend the guarantee of free expression ... [but under s.1] the competing values -- the value of the limitation and the value of free expression -- are weighed in the context of the case. Part of the context [here] is the fact that the expression at issue is wholly within the commercial sphere.

This approach ... may be compared with its treatment under the First Amendment to the Constitution of the United States ....

[There] the protection granted to commercial speech is limited, both from the point of view of content and remedy. First, the courts have developed a test for regulation of commercial speech which is less rigorous than for other speech.... Second, it is important to note that ... the consequences of overbreadth in commercial speech cases are not to invalidate the legislation, but merely to prevent reliance on overbroad provisions....

... [Under section 1] While the Canadian approach does not apply special tests to restrictions on commercial expression, our method of analysis does permit a sensitive, case-oriented approach to the determination of their constitutionality. Placing the conflicting values in their factual and social context when performing the s. 1 analysis permits the courts to have regard to special features of the expression in question. As Wilson J. notes in [Edmonton Journal] not all expression is equally worthy of protection. Nor are all infringements of free expression equally serious.

The expression limited by this regulation is that of dentists who wish to impart information to patients or potential patients. Their motive for doing so is ... primarily economic. Conversely, their loss, if prevented from doing so, is merely loss of profit, and not loss of opportunity to participate in the political process or the "marketplace of ideas", or to realize one's spiritual or artistic self-fulfilment [ ]. This suggests that restrictions on expression of this kind might be easier to justify....

On the other hand, it cannot be denied that expression of this kind does serve an important public interest by enhancing the ability of patients to make informed choices. Furthermore, the choice of a dentist must be counted as a relatively important consumer decision. To the extent, then, that this regulation denies or restricts access of consumers to information that is necessary or relevant to their choice of dentist, the infringement ... cannot be lightly dismissed.

These two opposing factors - that the expression is designed only to increase profit, and that the expression plays an important role in consumer choice - will be present in most if not all cases of commercial expression. Their precise mix, however, will vary greatly, which is why I believe it is inadvisable to create a special and standardized test for restrictions on commercial expression....

[After balancing the values at stake, McLachlin J. found that the restrictions were disproportionate to their objectives.]

1. Though Rocket dealt with the status of commercial expression under s.1, McLachlin J. chose Edmonton Journal's approach over Irwin Toy's framework for review in the related context of children's advertising. In doing so she solidified two key assumptions of thecontextual approach. The first is that not all expression is equally important, and that not all infringements are equally serious. The second is that restrictions on some expressive activities might as a result be easier to justify. Yet Irwin Toy declared that s.2(b) covers all expression without regard to its content or value. Can Rocket's principles of s.1 review be reconciled with Irwin Toy's definition of expression? If s.1 is determinative and the analysis assigns a different value to different expressive activities, where does that leave Irwin Toy's principle of freedom for "all expressions of the heart and mind"?

[A majority of the Court upheld the Criminal Code's prohibition on hate propaganda. In doing so, Dickson C.J.C., who spoke for the majority, declined to apply Irwin Toy's singular antagonist model for s. 1 review. What he proposed instead was a modified or more developed version of the contextual approach. See infra Chapter V.]

A. General approach to s. 1

... In R. v. Oakes [] this court offered a course of analysis to be employed in determining whether a limit on a right or freedom can be demonstrably justified in a free and democratic society. ...

The analytical framework of Oakes has been continually reaffirmed by this court, yet it is dangerously misleading to conceive of s. 1 as a rigid and technical provision, offering nothing more than a last chance for the state to justify incursions into the realm of fundamental rights. From a crudely practical standpoint, Charter litigants sometimes may perceive s. 1 in this manner, but in the body of our nation's constitutional law it plays an immeasurably richer role, one of great magnitude and sophistication. Before examining the specific components of the Oakes approach as they relate to this appeal, I therefore wish to comment more generally upon the role of s. 1.

In the words of s. 1 are brought together the fundamental values and aspirations of Canadian society. As this court has said before, the premier article of the Charter has a dual function, operating both to activate Charter rights and freedoms and to permit such reasonable limits as a free and democratic society may have occasion to place upon them []. What seems to me to be of significance in this dual function is the commonality that links the guarantee of rights and freedoms to their limitation. This commonality lies in the phrase "free and democratic society." As was stated by the majority in Slaight Communications Inc. v. Davidson []: "The underlying values of a free and democratic society both guarantee the rights of the Charter and, in appropriate circumstances, justify limitations upon those rights."

Obviously, a practical application of s. 1 requires more than an incantation of the words "free and democratic society." These words require some definition, an elucidation as to the values that they invoke. To a large extent, a free and democratic society embraces the very values and principles which Canadians have sought to protect and further by entrenching specific rights and freedoms in the Constitution. ... Undoubtedly these values and principles are numerous, covering the guarantees enumerated in the Charter and more. Equally, they may well deserve different emphases, and certainly will assume varying degrees of importance depending upon the circumstances of a particular case.

It is important not to lose sight of the factual circumstances in undertaking a s. 1 analysis, for these shape a court's view of both the right or freedom at stake and the limit proposed by the state; neither can be surveyed in the abstract. As Wilson J. said in Edmonton Journal, supra, referring to what she termed the "contextual approach" to Charter interpretation [] ... Though Wilson J. was speaking with reference to the task of balancing enumerated rights and freedoms, I see no reason why her view should not apply to the values associated with a free and democratic society. Clearly, the proper judicial perspective under s. 1 must be derived from an awareness of the synergetic relation between two elements: the values underlying the Charter and the circumstances of the particular case.

From the discussion so far, I hope it is clear that a rigid or formalistic approach to the application of s. 1 must be avoided. The ability to use s. 1 as a gauge which is sensitive to the values and circumstances particular to an appeal has been identified as vital in past cases...

[Under the first branch of Oakes the Chief Justice held that equality and multiculturalism can justify limits on s. 2(b).]

The second branch of the Oakes test -- proportionality -- poses the most challenging questions with respect to the validity of s. 319(2) ...

In discussing the ... government objective, I have commented at length upon the way in which the suppression of hate propaganda furthers values basic to a free and democratic society. I have said little, however, regarding the extent to which these same values, ... are furthered by permitting the exposition of such expressive activity. This lacuna is explicable when one realizes that ... Irwin Toy [] gives protection to a very wide range of expression. Content is irrelevant to this interpretation, the result of a high value being placed upon freedom of expression in the abstract.... In my opinion, however, the s. 1 analysis of a limit upon s. 2(b) cannot ignore the nature of the expressive activity which the state seeks to restrict. While we must guard carefully against judging expression according to its popularity, it is equally destructive of free expression values, as well as the other values which underlie a free and democratic society, to treat all expression as equally crucial to those principles at the core of s. 2(b).

In Rocket[] McLachlin J. recognized the importance of context in evaluating expressive activity under s. 1.... Applying that approach to the context of this appeal is a key aspect of the s. 1 analysis. One must ask whether the expression prohibited by s. 319(2) is tenuously connected to the values underlying s. 2(b).... In this regard, ... there can be no real disagreement about the subject matter of the messages and teachings [of] Mr. Keegstra: it is deeply offensive, hurtful and damaging to target group members, misleading to his listeners, and antithetical to the furtherance of tolerance and understanding in society.... To say merely that expression is offensive and disturbing, however, fails to address satisfactorily the question of whether, and to what extent, the expressive activity prohibited by s. 319(2) promotes the values underlying the freedom of expression. ...

[E]xpression intended to promote the hatred of identifiable groups is of limited importance when measured against free expression values.

At the core of freedom of expression lies the need to ensure that truth and the common good are attained.... Since truth and the ideal form of political and social organization can rarely, if at all, be identified with absolute certainty, it is difficult to prohibit expression without impeding the free exchange of potentially valuable information. Nevertheless, the argument from truth does not provide convincing support for the protection of hate propaganda. Taken to its extreme, this argument would require us to permit the communication of all expression, it being impossible to know with absolute certainty which factual statements are true, or which ideas obtain the greatest good. The problem with this extreme position, however, is that the greater the degree of certainty that a statement is erroneous or mendacious, the less its value in the quest for truth. Indeed, expression can be used to the detriment of our search for truth; the state should not be the sole arbiter of truth, but neither should we overplay the view that rationality will overcome all falsehoods in the unregulated marketplace of ideas. There is very little chance that statements intended to promote hatred against an identifiable group are true, or that their vision of society will lead to a better world....

Another ... rationale underlying s. 2(b) concerns the vital role of free expression as a means of ensuring individuals the ability to gain self-fulfilment....It is true that s. 319(2) inhibits this process among those individuals whose expression it limits,.... The message put forth by individuals who fall within the ambit of s. 319(2) represents a most extreme opposition to the idea that members of identifiable groups should enjoy [the same] aspect of the s. 2(b) benefit....

Moving on to a third strain of thought said to justify the protection of free expression, one's attention is brought specifically to the political realm....

The suppression of hate propaganda undeniably muzzles the participation of a few individuals in the democratic process, and hence detracts somewhat from free expression values.... I am aware that the use of strong language in political and social debate...is an unavoidable part of the democratic process. Moreover, I recognize that hate propaganda is expression of a type which would generally be categorized as "political", thus putatively placing it at the very heart of the principle extolling freedom of expression as vital to the democratic process. Nonetheless, expression can work to undermine our commitment to democracy where employed to propagate ideas antithetical to democratic values. Hate propaganda works in just such a way. This brand of expressive activity is thus wholly inimical to the democratic aspirations of the free expression guarantee.

... I am very reluctant to attach anything but the highest importance to expression relevant to political matters. But given the unparalleled vigour with which hate propaganda repudiates and undermines democratic values... I am unable to see the protection of such expression as integral to the democratic ideal so central to the s. 2(b) rationale. ... In my view, hate propaganda should not be accorded the greatest of weight in the s. 1 analysis.

... While I cannot conclude that hate propaganda deserves only marginal protection under the s. 1 analysis,...limitations upon hate propaganda are directed at a special category of expression which strays some distance from the spirit of s. 2(b), and hence conclude that "restrictions on expression of this kind might be easier to justify than other infringements of s. 2(b)"[]....

(2) Proportionality

(a) General Considerations

The real question in this case, as I see it, is whether the means -- the criminal prohibition of wilfully promoting hatred -- are proportional and appropriate to the ends of suppressing hate propaganda in order to maintain social harmony and individual dignity. The objective of the legislation is one of great significance, such significance that it is capable of outweighing the fundamental values protected by the Charter. The ultimate question is whether this objective is of sufficient importance to justify the limitation on free expression effected by s.319(2) of the Criminal Code. In answering this question, the court must consider not only the importance of the right or freedom in question and the significance of its limitation, but whether the way in which the limitation is imposed is justifiable. How serious is the infringement of the constitutionally guaranteed freedom, in this case freedom of expression? Is the limiting measure likely to further the objective in practice? Is the limiting measure overbroad or unnecessarily invasive? In the final analysis, bearing all these things in mind, does the benefit to be derived from the legislation outweigh the seriousness of the infringement? These are the considerations relevant to the question of the proportionality of the limiting law.

I have said that the contest in the case lies between the fundamental right of free expression on the one hand, and the values of social harmony and individual liberty on the other. In approaching the difficult task of determining where the balance lies in the context of this case, it is important not to be diverted by the offensive content of much of the speech in question. As this court has repeatedly stated, even the most reprehensible or disagreeable comments are prima facie entitled to the protection of s.2(b). It is not the statements of Mr. Keegstra which are at issue in this case, but rather the constitutionality of s.319(2) of the Criminal Code. That must be our focus.

Another general consideration relevant to the balancing of values involved in the proportionality test in this case relates peculiarly to the nature of freedom of expression. Freedom of expression is unique among the rights and freedoms guaranteed by the Charter in two ways.

The first way in which freedom of expression may be unique was alluded to earlier in the context of the philosophical underpinnings of freedom of expression. The right to fully and openly express one's views on social and political issues is fundamental to our democracy and hence to all the other rights and freedoms guaranteed by the Charter. Without free expression, the vigourous debate on policies and values that underlies participatory government is lacking. Without free expression, rights may be trammelled with no recourse in the court of public opinion. Some restrictions on free expression may be necessary and justified and entirely compatible with a free and democratic society. But restrictions which touch the critical core of social and political debate require particularly close consideration because of the dangers inherent in state censorship of such debate. This is of particular importance under s.1 of the Charter which expressly requires the court to have regard to whether the limits are reasonable and justified in a free and democratic society.

A second characteristic peculiar to freedom of expression is that limitations on expression tend to have an effect on expression other than that which is their target. In the United States this is referred to as the chilling effect. Unless the limitation is drafted with great precision, there will always be doubt about whether a particular form of expression offends the prohibition. There will always be limitations inherent in the use of language, but that must not discourage the pursuit of the greatest drafting precision possible. The result of a failure to do so may be to deter not only the expression which the prohibition was aimed at, but legitimate expression. The law-abiding citizen who does not wish to run afoul of the law will decide not to take the chance in a doubtful case. Creativity and the beneficial exchange of ideas will be adversely affected. This chilling effect must be taken into account in performing the balancing required by the analysis under s.1. It mandates that in weighing the intrusiveness of a limitation on freedom of expression our consideration cannot be confined to those who may ultimately be convinced under the limit, but must extend to those who may be deterred from legitimate expression by uncertainty as to whether they might be convicted.

I make one final point before entering on the specific test for proportionality proposed in Oakes. In determining whether the particular limitation of a right or freedom is justified under s.1, it is important to consider not only the proportionality and effectiveness of the particular law in question, but alternative ways of furthering the objective. This is particularly important at stages two (minimum impairment) and three (balancing the infringement against the objective) of the proportionality analysis proposed in Oakes. ...

1. Chief Justice Dickson warned against conceiving of s.1 as a "rigid and technical" provision, and in endorsing McLachlin J.'s "sensitive, case-oriented approach", avoided a "rigid or formalistic" application of s.1's criteria. What is the rationale of Oakes, and the Court's reasons there for establishing standards to be followed in every s.1 analysis? Even if Oakes is too rigid or monolithic, are there problems with the Chief Justice's solution?

2. More specifically, do you agree with the way s.2(b)'s values are incorporated into the s.1 analysis? Note, initially, that the values which support expressive freedom enter the analysis for the first time under proportionality, the second branch of the test. Under the first branch, expressive freedom is not taken into account in deciding that equality and multiculturalism override s.2(b). Then under proportionality, s.2(b)'s abstract principles are invoked to demonstrate that the particular expressive activity being considered is valueless. Is that consistent with the Court's concerns about placing too much of a premium on abstract principle? Is it consistent with Irwin Toy's principle of freedom for all expressions of the heart and mind?

3. How should s.2(b)'s values enter the s.1 analysis: to support the enforcement of the guarantee or to strengthen the government's case for justifiable limits? If expressive activity can be limited under s.1 because it does not serve s.2(b)'s underlying values, does that mean that the Charter only protects expression that is perceived as valuable? Does unpopular or unorthodox expression have any status under the Charter under the Chief Justice's approach?

4. Do you agree that truth, democracy or self-fulfilment can be used to restrict the Charter's protection of expressive freedom? As for the promotion of truth, it is beyond dispute that expressive freedom does not lead inexorably to the truth. But how can the irrationality of human behaviour justify limits on expression? If irrationality is an unavoidable hallmark of human behaviour, is there any reason to believe that the government will be more rational, or closer to the truth, in deciding which views are acceptable, than the general population?

Likewise it seems problematic for the Court to claim that the government's view of the relationship between expressive activity and self-fulfilment or democratic values is more consistent with s.2(b)'s values than those of the population interacting at large. It is difficult to see how s.2(b)'s rationales for protecting expressive freedom supported the opposite in Keegstra; i.e., that the reasons for valuing the freedom become a justification for limiting it. Instead of treating the freedom as inherently valuable, the Court equated the value of particular views with the value of the constitutional guarantee.

5. How does McLachlin J. differ from the Chief Justice in her approach to the s.1 analysis? Does she add anything to the evolving methodology?

[A majority invalidated key provisions of the Tobacco Products Control Act. McLachlin J. wrote an opinion that Sopinka and Major JJ. joined; Iacobucci J. wrote separately (with Lamer C.J.C. concurring) to form the majority opinion; La Forest J. dissented and was joined by L'Heureux-Dubé, Cory and Gonthier JJ. The debate between McLachlin J. and La Forest J. about principles of s.1 review is included here; see infra Chapter VIII.]

...The appellants have conceded that the objective of protecting Canadians from the health risks associated with tobacco use, and informing them about these risks, is pressing and substantial. Rather than focusing upon the objective, the appellants submit that the measures employed under the Act are not proportional to the objective....

[The trial judge] erred in deciding that the civil burden of proof must be "applied rigorously".... Throughout ... [he] referred to the requirements set forth in Oakes as a "test". In so doing, he adopted the view, unfortunately still held by some commentators, that the proportionality requirements established in Oakes are synonymous with, or have even superseded, the requirements set forth in s. 1. This view is based upon a misperception of this Court's jurisprudence. The appropriate "test" to be applied in a s. 1 analysis is that found in s. 1 itself, which makes it clear that the court's role in applying that provision is to determine whether an infringement is reasonable and can be demonstrably justified in a "free and democratic society". In Oakes, this Court established a set of principles, or guidelines, intended to serve as a framework for making this determination. However, these guidelines should not be interpreted as a substitute for s. 1 itself. It is implicit in the wording of s. 1 that the courts must, in every application of that provision, strike a delicate balance between individual rights and community needs. Such a balance cannot be achieved in the abstract, with reference solely to a formalistic "test" uniformly applicable in all circumstances. The s. 1 inquiry is an unavoidably normative inquiry, requiring the courts to take into account both the nature of the infringed right and the specific values and principles upon which the state seeks to justify the infringement.

This Court has on many occasions affirmed that the Oakes requirements must be applied flexibly, having regard to the specific factual and social context of each case. The word "reasonable" in s. 1 necessarily imports flexibility. In a significant, but often neglected, passage from Oakes itself, Dickson C.J. warned against an overly formalistic approach to s. 1 justification.... Shortly thereafter, he reaffirmed this warning in R. v. Edwards Books and Art Ltd.[ ]... Later, in R. v. Keegstra,[ ] Dickson C.J. had occasion to elaborate more fully upon the nature of the Oakes inquiry, stating that it was "dangerously misleading to conceive of s. 1 as a rigid and technical provision".... In applying a "rigid or formalistic approach to the application of s. 1", he cautioned that [ ] the courts risk losing sight of the "synergetic relation" that exists between Charter rights and the context in which they are claimed. In United States of America v. Cotroni, [ ] I also stressed the importance of this "synergetic relation", and the resulting need to avoid what I called a "mechanistic approach" in the application of the s. 1 analysis....

This Court has on many occasions stated that the evidentiary requirements under s. 1 will vary substantially depending upon both the nature of the legislation and the nature of the right infringed. In the present cases, both these contextual elements are highly relevant to a proper application of the s. 1 analysis....

Parliament clearly intended to protect public health by reducing the number of inducements for Canadians to consume tobacco, and by educating Canadians about the health risks entailed in its consumption....

[T]he...health problems raised by tobacco consumption are highly relevant to the s. 1 analysis, both in determining the appropriate standard of justification and in weighing the relevant evidence....[I]t is essential to keep in mind that tobacco addiction is a unique, and somewhat perplexing, phenomenon ....[Currently] there is no definitive scientific explanation for tobacco addiction, nor is there a clearly understood causal connection between advertising, or any other environmental factor, and tobacco consumption....

[However], overwhelming evidence was introduced at trial that tobacco use is a principal cause of [several deadly diseases], and that tobacco is highly addictive. Perhaps the most distressing aspect of the evidence introduced at trial is that tobacco consumption is most widespread among the young and the less educated -- those...who are least able to inform themselves about, and to protect themselves against, its hazards....

It appears, then, that there is a significant gap between our understanding of the health effects of tobacco consumption and of the root causes of tobacco consumption. In my view, this gap raises a fundamental institutional problem... . Simply put, a strict application of the proportionality analysis in cases of this nature would place an impossible onus on Parliament by requiring it to produce definitive social scientific evidence respecting the root causes of a pressing area of social concern every time it wishes to address its effects. This could have the effect of virtually paralyzing the operation of government in the socio-economic sphere.... To require Parliament to wait for definitive social science conclusions every time it wishes to make social policy would impose an unjustifiable limit on legislative power by attributing a degree of scientific accuracy to the art of government which, in my view, is simply not consonant with reality....

[T]his Court has recognized the need to attenuate the Oakes standard of justification when institutional constraints analogous to those in the present cases arise....In drawing a distinction between legislation aimed at "mediating between different groups", where a lower standard of s. 1 justification may be appropriate, and legislation where the state acts as the "singular antagonist of the individual", where a higher standard of justification is necessary, the Court in Irwin Toy was drawing upon the more fundamental institutional distinction between the legislative and judicial functions that lies at the very heart of our political and constitutional system. Courts are specialists in the protection of liberty and the interpretation of legislation and are, accordingly, well placed to subject criminal justice legislation to careful scrutiny. However, courts are not specialists in the realm of policy-making, nor should they be. This is a role properly assigned to the elected representatives of the people... . In according a greater degree of deference to social legislation than to legislation in the criminal justice context, this Court has recognized these important institutional differences between legislatures and the judiciary....

In enacting this legislation, Parliament was facing a difficult policy dilemma....[Rather than a total prohibition] Parliament chose a less drastic, and more incremental, response to the tobacco health problem. In prohibiting the advertising and promotion of tobacco products, as opposed to their manufacture or sale, Parliament has sought to achieve a compromise among the competing interests of smokers, non-smokers and manufacturers, with an eye to protecting vulnerable groups in society. Given the fact that advertising, by its very nature, is intended to influence consumers and create demand, this was a reasonable policy decision....

Seen in this way, it is clear that the Act is the very type of legislation to which this Court has generally accorded a high degree of deference....This Court has recognized...that, depending on its nature, expression will be entitled to varying levels of constitutional protection....Although freedom of expression is undoubtedly a fundamental value, there are other fundamental values that are also deserving of protection and consideration by the courts. When these values come into conflict, as they often do, it is necessary for the courts to make choices based not upon an abstract, Platonic analysis, but upon a concrete weighing of the relative significance of each of the relevant values in our community in the specific context. This the Court has done by weighing freedom of expression claims in light of their relative connection to a set of even more fundamental values....When state action places such values in jeopardy, this Court has been careful to subject it to a searching degree of scrutiny. However, when the form of expression placed in jeopardy falls farther from the "centre core of the spirit", this Court has ruled restrictions on such expression less difficult to justify....[and] has applied a lower standard of justification....

[T]he harm engendered by tobacco, and the profit motive underlying its promotion, place this form of expression as far from the "core" of freedom of expression values as prostitution, hate mongering, or pornography, and thus entitle it to a very low degree of protection under s. 1....[T]obacco advertising serves no political, scientific or artistic ends; nor does it promote participation in the political process. Rather, its sole purpose is to inform consumers about, and promote the use of, a product that is harmful, and often fatal....The...motivation for this advertising is...profit....

The appellants...spend millions of dollars every year to promote their products... The sophistication of the advertising campaigns employed by these corporations...undermines their claim to freedom of expression protection because it creates an enormous power differential between these companies and tobacco consumers in the "marketplace of ideas"....

I conclude, therefore, that an attenuated level of s. 1 justification is appropriate....

I agree...that "[t]he appropriate `test'... in a s. 1 analysis is that found in s. 1 itself" [ ].... The jurisprudence laying down the...importance of objective and proportionality [articulates] the factors which must be considered in determining whether a law that violates constitutional rights is nevertheless "reasonable" and "demonstrably justified". If the objective...lacks sufficient importance, the infringement cannot be reasonable or justified. Similarly, if the good which may be achieved...pales beside the seriousness of the infringement,...that law cannot be considered reasonable or justified. While sharing La Forest J.'s view that an overtechnical approach to s. 1 is to be eschewed, I find no conflict between the words of s. 1 and the jurisprudence founded upon Oakes [ ]....

First, to be saved under s. 1 the party defending the law...must show that the law...is "reasonable". In other words, the infringing measure must be justifiable by the processes of reason and rationality. The question is not whether the measure is popular...[but] whether it can be justified by application of the processes of reason. In the legal context, reason imports the notion of inference from evidence or established truths. This is not to deny intuition its role, or to require proof to the standards required by science in every case, but it is to insist on a rational, reasoned defensibility.

Second,...the state must show that the violative law is "demonstrably justified." The choice of the word "demonstrably" is critical. The process is not one of mere intuition, nor is it one of deference to Parliament's choice. It is a process of demonstration. This reinforces the notion inherent in the word "reasonable" of rational inference from evidence or established truths.

The bottom line is this. While remaining sensitive to the social and political context of the impugned law and allowing for difficulties of proof inherent in that context, the courts must nevertheless insist that before the state can override constitutional rights, there be a reasoned demonstration of the good which the law may achieve in relation to the seriousness of the infringement. It is the task of the courts to maintain this bottom line if the rights conferred by our constitution are to have force and meaning. The task is not easily discharged, and may require the courts to confront the tide of popular public opinion. But that has always been the price of maintaining constitutional rights. No matter how important Parliament's goal may seem, if the state has not demonstrated that the means by which it seeks to achieve its goal are reasonable and proportionate to the infringement of rights, then the law must perforce fail....

[I agree that] the Oakes test must be applied flexibly, having regard to the factual and social context of each case....

That the s. 1 analysis takes into account the context in which the particular law is situate should hardly surprise us. The s. 1 inquiry is by its very nature a fact-specific inquiry. In determining whether the objective of the law is sufficiently important to be capable of overriding a guaranteed right, the court must examine the actual objective of the law. In determining proportionality, it must determine the actual connection between the objective and what the law will in fact achieve; the actual degree to which it impairs the right; and whether the actual benefit which the law is calculated to achieve outweighs the actual seriousness of the limitation of the right. In short, s. 1 is an exercise based on the facts of the law at issue and the proof offered of its justification, not on abstractions.

However, while the impugned law must be considered in its...context, nothing in the jurisprudence suggests that the contextual approach reduces the obligation on the state to meet the burden of demonstrating that the limitation on rights imposed by the law is reasonable and

justified. Context is essential in determining legislative objective and proportionality, but it cannot be carried to the extreme of treating the challenged law as a unique socio-economic phenomenon, of which Parliament is deemed the best judge. This would...undercut the obligation on Parliament to justify limitations...on Charter rights and...substitute ad hoc judicial discretion for the reasoned demonstration contemplated by the Charter.

Related to context is the degree of deference which the courts should accord to Parliament.... For example, it has been suggested that greater deference...may be appropriate if the law is concerned with the competing rights between different sectors of society than if it is a contest between the individual and the state: Irwin Toy [ ]; Stoffman v. Vancouver General Hospital [ ]. However, such distinctions may not always be easy to apply. ...The cases at bar provide a cogent example. We are concerned with a criminal law, which pits the state against the offender. But the social values reflected in this criminal law lead La Forest J. to conclude that "the Act is the very type of legislation to which this Court has generally accorded a high degree of deference" [ ]. This said, I accept that the situation which the law is attempting to redress may affect the degree of deference which the court should accord to Parliament's choice. The difficulty of devising legislative solutions to social problems which may be only incompletely understood may also affect the degree of deference that the courts accord to Parliament or the Legislature....

[C]are must be taken not to extend the notion of deference too far. ...to the point of relieving the government of the burden which the Charter places upon it....Parliament['s] role [is] to choose the appropriate response to social problems within the limiting framework of the constitution. But the [courts' role is] to determine, objectively and impartially, whether Parliament's choice falls within the limiting framework of the constitution. The courts are no more permitted to abdicate their responsibility than is Parliament. To carry judicial deference to the point of accepting Parliament's view simply on the basis that the problem is serious and the solution difficult, would be to diminish the role of the courts in the constitutional process and to weaken the structure of [our fundamental] rights.

Context and deference are related to a third concept in the s. 1 analysis: standard of proof. I agree with La Forest J. that proof to the standard required by science is not required. Nor is proof beyond a reasonable doubt on the criminal standard required. As the s. 1 jurisprudence has established, the civil standard of proof on a balance of probabilities at all stages of the proportionality analysis is more appropriate... [ ]. I thus disagree with La Forest J.'s conclusion [ ] that... "it is unnecessary ... for the government to demonstrate a rational connection according to a civil standard of proof". Discharge of the civil standard does not require scientific demonstration; the balance of probabilities may be established by the application of common sense to what is known, even though what is known may be deficient from a scientific point of view [ ].

In summary, while I agree with La Forest J. that context, deference and a flexible and realistic standard of proof are essential aspects of the s. 1 analysis, these concepts should be used as they have been used by this Court in previous cases. They must not be attenuated to the point that they relieve the state of the burden the Charter imposes of demonstrating that the limits imposed on our constitutional rights and freedoms are reasonable and justifiable in a free and democratic society....

1. How would La Forest J. modify the Court's approach to review under s.1? Do you agree with his critique of the Oakes test? To what extent - or at what point - do flexibility and context compromise the purpose of s.1 review, which is to require the government to demonstrate the justifiability of its infringement of s.2(b)?

2. La Forest J. stated that the "evidentiary requirements" under s.1 will vary "substantially depending on both the nature of the legislation and the nature of the right infringed". Do you have any problem with that standard? Note that it became part of the Court's unanimous opinion in Ross v. N.B. School Dist. No. 15, infra Chapter V.

3. What is the difference between McLachlin J. and La Forest J.'s conception of s.1 review? Whose do you prefer and why?